EXHIBIT 1.2
DTE ENERGY TRUST [II/III]
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEES BY
DTE ENERGY COMPANY
COMMON STOCK PURCHASE CONTRACTS
COMMON STOCK PURCHASE UNITS
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UNDERWRITING AGREEMENT
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To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
DTE Energy Trust [II/III], a statutory trust created under the Delaware
Statutory Trust Act (the "Delaware Act") of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. (ss.) 3801 et seq.) (the "Trust"),
and DTE Energy Company, a Michigan corporation (the "Company"), as sponsor of
the Trust and as guarantor, propose to enter a Pricing Agreement (the "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, that the Trust issue and sell to the firms named in
Schedule I to the Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its preferred securities (the "Preferred Securities") representing
undivided beneficial interests in the assets of the Trust.
If specified in the Pricing Agreement, the Company will also issue and
sell to the Underwriters named in Schedule I to the Pricing Agreement certain of
its (i) contracts to purchase shares of Common Stock, without par value (the
"Common Stock"), of the Company (the "Purchase Contracts") and/or (ii) units
consisting of Purchase Contracts and Preferred Securities (such units referred
to herein as the "Units"), (with respect to such Pricing Agreement, the
Preferred Securities, the Purchase Contracts and the Units are collectively
referred to herein as the "Securities"). If applicable, "Underlying Securities"
shall mean the Common Stock issuable pursuant to the Purchase Contracts.
The Securities specified in the Pricing Agreement are referred to as
the "Designated Securities" with respect to such Pricing Agreement. If specified
in such Pricing Agreement, the Company may initially sell to the Underwriters
the Securities specified as the "Firm Designated
Securities" and may grant the Underwriters the right to purchase at their
election additional Securities, for the sole purpose of covering
over-allotments, if any, in the sale of Securities, specified as provided in
such Pricing Agreement as provided in Section 3 hereof (the "Option
Securities"), in which case the "Designated Securities" shall refer to the Firm
Designated Securities and any Option Securities.
The Trust will issue the Preferred Securities pursuant to an Amended
and Restated Trust Agreement as specified in the Pricing Agreement, among The
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, certain employees of the Company, as Administrative Trustees,
and the several Holders as defined therein in substantially the form heretofore
delivered to you as the Representatives, said Agreement being hereinafter
referred to as the "Trust Agreement".
The proceeds of the sale of the Preferred Securities to the public and
of common securities of the Trust (the "Common Securities") to the Company
concurrently with the sale of the Preferred Securities are to be invested in
[subordinated] debentures of the Company (the "Debt Securities") identified in
the Pricing Agreement with respect to the Preferred Securities, to be issued
pursuant to an indenture dated as of April 9, 2001 (as supplemented or amended
from time to time, the "Indenture") between the Company and The Bank of New
York, as trustee (the "Indenture Trustee"). The Preferred Securities will be
guaranteed by the Company (the "Guarantee") to the extent set forth in a
preferred securities guarantee agreement (the "Preferred Securities Guarantee
Agreement") between the Company and The Bank of New York, as trustee (the
"Preferred Securities Guarantee Trustee").
Each issue of Purchase Contracts will be governed by a Purchase
Contract Agreement (the "Purchase Contract Agreement"), between the Company and
the purchase contract agent named therein, as Purchase Contract Agent (the
"Purchase Contract Agent"), and evidenced by certificates ("Unit Certificates").
Pursuant to a pledge agreement (the "Pledge Agreement"), among the Company, the
Purchase Contract Agent and the collateral agent named therein, as collateral
agent (the "Collateral Agent"), the Preferred Securities underlying the Units
will be pledged by the Purchase Contract Agent on behalf of the holders of the
Units to secure the holders' obligations to the Company under the Purchase
Contract underlying such Unit. The rights to purchase newly issued shares of
Common Stock of the Company under a Purchase Contract, together with the
Preferred Securities [and/or other securities] securing such Purchase Contract,
and the pledge arrangements under the Pledge Agreement securing the foregoing
obligations, collectively constitute a Unit; provided, however, that after the
Time of Delivery (as defined herein), other Pledged Securities (as defined in
the Purchase Contract Agreement) may replace the Preferred Securities and shall
be considered part of a Unit. Unless the context otherwise requires, for
purposes of this Agreement, the act of entering into a Purchase Contract
underlying a Unit, and purchasing a Preferred Security underlying a Unit, shall
be referred to as a "purchase" of such Unit.
If specified in the applicable Pricing Agreement in connection with the
offer and sale of Purchase Contracts and Units, the Company will enter into a
remarketing agreement among the Company, the Purchase Contract Agent and a
nationally recognized investment banking firm chosen by the Company (the
"Remarketing Agent"), in connection with the remarketing of certain Preferred
Securities. The Remarketing Agreement, the Purchase Contract Agreement and
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the Pledge Agreement are referred to in this Agreement as the "Operative
Agreements". The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the Trust Agreement in the case of the Preferred Securities
identified in such Pricing Agreement and the Purchase Contract Agreement, in the
case of the Purchase Contracts and Units.
1. The particular sale of the Designated Securities may be to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Trust or the Company to sell any
of the Securities or as an obligation of any of the Underwriters to purchase any
of the Securities. The obligation of the Trust or the Company to issue and sell
any of the Securities and the obligation of any of the Underwriters to purchase
any of the Securities shall be evidenced by the Pricing Agreement with respect
to the Designated Securities specified therein. Each Pricing Agreement shall
specify the aggregate liquidation amount or aggregate amount of the Designated
Securities or the Firm Designated Securities, the maximum aggregate liquidation
amount or aggregate amount of Option Securities, if any, the initial public
offering price of such Designated Securities or Firm Designated Securities and
Option Securities or the manner of determining such price, the terms of the
Designated Securities, including the terms on which and terms of the securities
into which the Designated Securities will be exchangeable, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the number or amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities or Firm Designated Securities and such
Option Securities, if any, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth, as applicable, in the Trust
Agreement, the Operative Agreements, the registration statement and prospectus
with respect thereto) the terms of such Designated Securities. The Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications, facsimile or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and the Pricing Agreement shall be several and
not joint.
2. The Company and the Trust, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters that:
(a) Registration statements on Form S-3 (File Nos. 333-[ ],
333-[ ] and 333-[ ]), as amended by any pre-effective amendment
thereto (the "Initial Registration Statement"), in respect of the
Preferred Securities, the Debt Securities, the Guarantee, the Purchase
Contracts and Units and certain other securities has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
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prospectus contained therein, to the Representatives for each of the
other Underwriters, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which, if so filed, became effective upon filing, no other
document with respect to the Initial Registration Statement or any
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act (the "1933 Act Rules and Regulations"), each
in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective amendment thereto
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective but
excluding Forms T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission under the
Exchange Act (the "1934 Act Rules and Regulations"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable,
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and the 1933 Act Rules and Regulations and the 1934 Act Rules and
Regulations and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the 1933 Act Rules and Regulations and the 1934 Act Rules and
Regulations and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the 1933 Act Rules and Regulations and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Trust nor the Company or any of its
Significant Subsidiaries (as defined below) has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in
the capital stock or long-term debt of the Trust, the Company or any of
its Significant Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change (in either
case not in the ordinary course of business), in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Trust or the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; "Significant Subsidiary" shall mean
each subsidiary listed on Schedule III to the Pricing Agreement; the
only subsidiaries of the Company are (i) those subsidiaries listed on
Schedule III and (ii) certain other subsidiaries which, considered in
the aggregate as a single subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X of the 1933 Act
Rules and Regulations;
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(e) The Trust has been duly created and is validly existing as
a statutory trust in good standing under the laws of the State of
Delaware and all filings, including the filing of a certificate of
trust (the "Certificate of Trust"), required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Trust as a statutory trust have been made;
(f) The Trust has the power and authority to own property and
conduct its business as described in the Prospectus, to issue the
Preferred Securities and the Common Securities and to enter into and
perform its obligations under the Trust Agreement to which it is a
party. The Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus. The Trust is, and will
be, under current law, classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a
corporation;
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Michigan, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(h) Each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the power
and authority (corporate and other) to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
and, except as described in the Registration Statement and the
Prospectus, each Significant Subsidiary of the Company holds all
material licenses, certificates and permits (or has applications
pending) from governmental authorities necessary for the conduct of its
business;
(i) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; the Trust has an authorized capitalization as
described in the Prospectus, and all the outstanding beneficial
interests in the Trust have been duly and validly authorized and
issued, are fully paid and non-assessable and conform in all material
respects to the descriptions thereof contained in the Prospectus;
(j) Each of this Agreement, the Pricing Agreement and, if
applicable, the Remarketing Agreement, has been duly authorized,
executed and delivered by the Company and the Trust;
(k) The Preferred Securities, whether issued separately or
with Units, have been duly authorized for issuance by the Trust, and,
when the Preferred Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Preferred
Securities against payment therefor as provided in the Pricing
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Agreement, such Preferred Securities will be duly and validly issued
and will be fully paid and non-assessable undivided preferred
beneficial interests in the assets of the Trust entitled to the
benefits provided by the Trust Agreement; the issuance of the Preferred
Securities will not be subject to preemptive or other similar rights;
the Preferred Securities will be in the form contemplated by and each
registered holder thereof will be entitled to the benefit of, the Trust
Agreement; and the Preferred Securities will conform in all material
respects to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(l) The holders of the Preferred Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
(m) The Common Securities of the Trust have been duly
authorized for issuance by the Trust, and, when the Common Securities
of the Trust are issued and delivered pursuant to the Trust Agreement
against payment of the consideration therefor, such Common Securities
will be duly and validly issued and will be fully paid and
non-assessable undivided common beneficial interests in the Trust
entitled to the benefits provided by the Trust Agreement and will
conform in all material respects to the description thereof contained
in the Prospectus; the issuance of the Common Securities of the Trust
will not be subject to preemptive or other similar rights; and at each
Time of Delivery (as defined in Section 4 hereof), all of the issued
and outstanding Common Securities of the Trust will be directly owned
by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(n) The Guarantee, the Trust Agreement, the Debt Securities
and the Indenture (the Guarantee, the Trust Agreement, the Debt
Securities and the Indenture being collectively referred to as the
"Company Agreements") have each been duly authorized by the Company
and, when executed and delivered by the Company and (i) in the case of
the Guarantee, by the Preferred Guarantee Trustee (as defined in the
Preferred Securities Guarantee Agreement), (ii) in the case of the
Trust Agreement, by the Trustees (as defined in the Trust Agreement),
(iii) in the case of the Indenture, by the Indenture Trustee, and (iv)
in the case of the Debt Securities, when authenticated and delivered by
the Indenture Trustee and paid for by the Trust in accordance with the
note purchase agreement (the "Note Purchase Agreement") between the
Company and the Trust, will be duly executed and delivered by the
Company (and, in the case of the Debt Securities, duly authenticated
and issued) and will constitute at each Time of Delivery (as defined
below) valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms (and, in the case
of the Debt Securities, entitled to the benefits of the Indenture),
subject, as to enforcement, to bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Trust Agreement, the Indenture and the Guarantee have
each been duly qualified under the Trust Indenture Act; and the Company
Agreements will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented with
respect to the Designated Securities;
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(o) The Trust Agreement has been duly authorized by the Trust
and, when executed and delivered by the Trust and by the Trustees (as
defined in the Trust Agreement) will be duly executed and delivered by
the Trust and will constitute at each Time of Delivery a valid and
legally binding obligation of the Trust, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
receivership, liquidation, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; each of the Administrative Trustees of the Trust (as
defined in the Trust Agreement) is an officer of the Company and has
been duly authorized by the Company to execute and deliver the Trust
Agreement;
(p) If the Designated Securities include Purchase Contracts,
the shares of Common Stock to be issued by the Company pursuant to the
related Purchase Contracts have been, or as of the date of the
applicable Pricing Agreement will have been, duly authorized and
reserved for issuance by the Company for issuance pursuant to the
related Purchase Contracts and, when issued in accordance with the
Purchase Contracts and the Purchase Contract Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to
preemptive or similar rights of any securityholder of the Company; no
holder of such Underlying Securities will be subject to personal
liability solely by reason of being such a holder; and the Common Stock
will conform in all material respects to the description thereof
contained in the Prospectus as amended or supplemented with respect to
the Designated Securities;
(q) If the Designated Securities include Purchase Contracts,
the Purchase Contracts, which Purchase Contracts are evidenced by the
Unit Certificates, have been, or as of the date of the applicable
Pricing Agreement will have been, duly and validly authorized by the
Company and, when issued and delivered by the Company pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and executed by the other parties thereto, will constitute
valid and binding obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Purchase Contracts and Unit Certificates will
conform in all material respects to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(r) If the Designated Securities include Units, the Units have
been, or as of the date of the applicable Pricing Agreement will have
been, duly and validly authorized by the Company and, when issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to the Designated Securities against payment therefor, will be
duly and validly issued, fully paid and non-assessable and will
constitute valid and binding obligations of the Company entitled to the
benefits of and subject to the obligations of the Purchase Contract
Agreement and enforceable in accordance with their terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Units will conform in
all material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
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(s) If the Designated Securities include Purchase Contracts
and Units, the Purchase Contract Agreement and the Pledge Agreement,
have been, or as of the date of the applicable Pricing Agreement will
have been, duly and validly authorized by the Company and, when issued
and delivered pursuant to this Agreement and the Pricing Agreement with
respect to the Designated Securities and executed and delivered by the
other parties thereto, will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; the Purchase Contract Agreement and the
Pledge Agreement conform or will conform in all material respects to
the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities; and the Pledge
Agreement creates, as collateral security for the performance when due
by the holders from time to time of the Units of their respective
obligations under the Purchase Contracts constituting part of such
Units, a legal, valid and perfected security interest (as that term is
defined in the Uniform Commercial Code, as adopted and currently in
effect in the State of New York), in favor of the Collateral Agent, in
the right, title and interest of such holders in the Pledged Securities
(as defined in the Pledge Agreement) constituting a part of such Units;
(t) The issue and sale of the Preferred Securities and the
Common Securities by the Trust, the execution, delivery and performance
of and the compliance by the Trust with all of the provisions of this
Agreement, the Pricing Agreement, the Preferred Securities, the Common
Securities, and the Trust Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under any material indenture, mortgage, deed of
trust, loan agreement, lease or other material agreement or instrument
to which the Trust or the Company is a party or by which the Trust or
the Company is bound or to which any of the properties or assets of the
Trust or the Company is subject, nor will such action result in any
violation of the provisions of the Certificate of Trust or Trust
Agreement of such Trust or the provisions of the Restated and Amended
Articles of Incorporation or By-laws of the Company or any material
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust, the Company or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated
Securities and the Common Securities by the Trust or execution,
delivery and performance and the consummation by the Trust or the
Company of the transactions contemplated by this Agreement, any Pricing
Agreement, the Designated Securities, the Common Securities of the
Trust, or the Trust Agreement, except such as have been, or will have
been prior to the Time of Delivery obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(u) The issue by the Company of the Guarantee, the issue and
sale of the Debt Securities and, as applicable, the entry into Purchase
Contracts by the Company, the issue and sale of the Underlying
Securities by the Company pursuant to the Purchase
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Contracts, and the execution, delivery and performance of and the
compliance by the Company with all of the provisions of this Agreement,
any Pricing Agreement, the Company Agreements or the Operative
Agreements, as applicable, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any material contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other material agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the properties or assets of the Company is
subject, nor will such action result in any violation of the provisions
of the Amended and Restated Articles of Incorporation or By-Laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Debt
Securities, the issue of the Guarantee, the entry into Purchase
Contracts by the Company, the issue and sale of the Underlying
Securities by the Company pursuant to the Purchase Contracts, the
execution, delivery, performance of and compliance by the Company with
all of the provisions of this Agreement, the Pricing Agreement, the
Company Agreements, or, as applicable, the Operative Agreements or the
consummation by the Company of the transactions contemplated by this
Agreement, any Pricing Agreement, the Company Agreements or, as
applicable, the Operative Agreements, except such as have been, or will
have been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(v) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Capital Stock",
"Description of Debt Securities", "Description of Trust Preferred
Securities", "Description of Trust Preferred Securities Guarantees",
and "Description of Common Stock Purchase Contracts and Units" (or
similar captions), insofar as they purport to constitute a summary of
the terms of the Preferred Securities, the Common Securities, the Debt
Securities, the Guarantees, the Purchase Contracts and Units, and the
Company Agreements and, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate
and fair summaries in all material respects;
(w) Neither the Trust, the Company nor any of its Significant
Subsidiaries is in violation of the Trust Agreement or the Certificate
of Trust, in the case of the Trust, or the Amended and Restated
Articles of Incorporation or By-Laws in the case of the Company, or as
the case may be, the articles of incorporation or other equivalent
document, or by-laws, in the case of each Significant Subsidiary, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other material agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
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(x) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Trust, the
Company or any of its subsidiaries (other than the Trust) is a party or
of which any of their properties is the subject which, if determined
adversely to the Trust, the Company or any of its subsidiaries (other
than the Trust), would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of either the
Trust or the Company and its subsidiaries, and, other than as set forth
in the Prospectus, to the best of the Trust's and the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(y) Neither the Trust nor the Company is or, after giving
effect to the offering and sale of the Designated Securities and the
Guarantee, will be, an "investment company", as such term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(z) The Company is a "holding company" (within the meaning of
the Public Utility Holding Company Act of 1935, as amended (the "PUHC
Act")) which is exempt from being required to seek approval to perform
its obligations under this Agreement and the Securities pursuant to
Rule 2 of the rules and regulations promulgated pursuant to the PUHC
Act;
(aa) [The Designated Securities, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations");]
(bb) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(cc) Deloitte & Touche LLP, who certified the financial
statements and supporting schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Company and its consolidated subsidiaries as required by
the Act and the 1933 Act Rules and Regulations;
(dd) The financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
11
consistent basis throughout the periods involved. The Company has no
material contingent obligation which is not disclosed in the
Registration Statement and the Prospectus. The supporting schedules, if
any, included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein;
(ee) Other than as set forth in the Prospectus, the Company
and its Significant Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received (or have pending) all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(ff) The Debt Securities will be classified for United States
federal income tax purposes as indebtedness of the Company.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to
any Designated Securities that the Company thereby grants to the Underwriters
the right (an "Over-allotment Option") to purchase at their election up to the
number of Option Securities set forth in such Pricing Agreement, on the terms
set forth therein, for the sole purpose of covering over-allotments, if any, in
the sale of the Firm Designated Securities. Any such election to purchase
12
Option Securities may be exercised by written notice from the Representatives to
the Trust and the Company, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Option Securities to be
purchased and the date on which such Option Securities are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 5 hereof) or, unless the Representatives, the
Trust and the Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The amount or number of Option Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the amount or number of Option Securities which the
Trust and the Company have been advised by the Representatives have been
attributed to such Underwriter; provided that, if the Trust and the Company have
not been so advised, the number of Option Securities to be so added shall be, in
each case, that proportion of Option Securities which the amount or number of
Firm Designated Securities to be purchased by such Underwriter under such
Pricing Agreement bears to the aggregate amount or number of Firm Designated
Securities to be purchased by such Underwriter under such Pricing Agreement,
subject to such adjustments as the Representatives in their discretion shall
make to eliminate any sales or purchases in less than authorized denominations
or of a fractional number of shares, as the case may be. The total number of
Designated Securities to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm Designated Securities
set forth in Schedule I to such Pricing Agreement plus the aggregate amount or
number of Option Securities which the Underwriters elect to purchase.
As compensation to the Underwriters of the Designated Securities for
their commitments hereunder and under the Pricing Agreement, and in view of the
fact that the proceeds of the sale of the Designated Securities will be used by
the Trust to purchase the Debt Securities of the Company, the Company agrees to
pay at each Time of Delivery to the Representatives, for the accounts of the
several Underwriters, the amount set forth in the Pricing Agreement per
Designated Security for the Designated Securities to be delivered at each Time
of Delivery (as defined below).
4. If applicable, the Underwriters agree to pledge to the Collateral
Agent, on behalf of the initial purchasers of the Purchase Contracts, the
Preferred Securities underlying the Purchase Contracts. Such pledge shall be
effected by the delivery to the Collateral Agent in New York by the Underwriters
of the Preferred Securities to be pledged at the Time of Delivery (as defined
below) in accordance with the Pledge Agreement.
5. Certificates for the Firm Designated Securities and the Option
Securities, if any, to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in the Trust Agreement, or in
the Purchase Contract Agreement, as the case may be, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Trust and the Company,
shall be delivered by or on behalf of the Trust, or the Company in the case of
the Purchase Contracts or Units, (i) with respect to the Firm Designated
Securities, all in the manner and at the place and time and date specified in
such Pricing Agreement or at such other place and time and date as the
13
Representatives, the Trust and the Company may agree upon in writing, such time,
date and place being herein called the "First Time of Delivery" and (ii) with
respect to the Option Securities, if any, in the manner and at the place and
time and date specified by the Representatives in the written notice given by
the Representatives of the Underwriters' election to purchase such Option
Securities, or at such other place and time and date as the Representatives, the
Trust and the Company may agree upon in writing, each such time, date and place,
if not the First Time of Delivery, being herein called the "Subsequent Time of
Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
6. The Trust and the Company, jointly and severally, agree with each of
the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities and to file such
Prospectus pursuant to Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Designated Securities and prior to the last Time of Delivery for such
Designated Securities unless the Company has furnished the
Representatives for such Securities with a copy for their review and
comment a reasonable time prior to filing and has reasonably considered
any comments of the Representatives; to advise the Representatives
promptly of any such amendment or supplement after such Time of
Delivery and for a period not exceeding nine months and to furnish the
Representatives with copies thereof in an amount as the Representatives
may reasonably request, in case a Representative is required to deliver
a prospectus after the expiration of nine months after the Time of
Delivery, the Company shall furnish the Representatives, upon request,
at the expense of the Representatives, a reasonable quantity of a
supplemental prospectus or a supplement to the Prospectus complying
with Section 10(a)(3) of the Act, to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company or the Trust with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Designated Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Designated Securities, of the
suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, to promptly
use every reasonable effort to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Debt Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may
request and to comply, so far as it is able, with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities or such Debt Securities,
provided that in
14
connection therewith neither the Trust nor the Company shall be
required to qualify as a foreign corporation or as a securities dealer
or to file a general consent to service of process or to file an annual
report in any jurisdiction or to comply with any other requirements
deemed by the Company to be unduly burdensome;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Designated Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) In the case of the Company, to make generally available to
its securityholders as soon as practicable, but in any event not later
than fifteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its consolidated subsidiaries (which need
not be audited) and, if at such time, the Trust is required to file
reports and proxy or information statements pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, of the Trust (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period of [60] days from the date of the
Pricing Agreement, not to offer, sell, contract to sell or otherwise
dispose of any Securities, any other beneficial interests in the assets
of the Trust, or any preferred securities or any other securities of
any Trust or the Company, as the case may be, that are substantially
similar to such Designated Securities (including any guarantee of such
securities) or any securities that are convertible into or exchangeable
for, or that represent the right to receive, Securities, preferred
securities or any such substantially similar securities of any Trust or
the Company, or any debt securities of the Company (other than the Debt
Securities) which mature more than one year after such Time of Delivery
and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives (other than
the Designated Securities that are to be sold pursuant to such Pricing
Agreement or commercial paper program [list benefit plans and stock
purchase plans] in the ordinary course of business or as otherwise
specified in the Pricing Agreement);
15
(f) In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Designated Securities as
contemplated herein or in the Pricing Agreement;
(g) To use the best efforts to list [within 30 days following
the First Time of Delivery,] subject to notice of issuance, the
Designated Securities on the New York Stock Exchange and, if the
Company elects to dissolve the Trust and to distribute the Debt
Securities to the holders of the Designated Securities in liquidation
of the Trust, to use its best efforts to list the Debt Securities on
the New York Stock Exchange prior to such distribution;
(h) If the Trust and the Company elect to rely upon Rule
462(b), the Trust and the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the
Trust and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act; and
(i) If the applicable Pricing Agreement specifies that any
related Underlying Securities include Common Stock, the Company will
reserve and keep available at all times, free of preemptive or other
similar rights, a sufficient number of shares of Common Stock, for the
purpose of enabling the Company to satisfy any obligations to issue
such Underlying Securities pursuant to the Purchase Contracts.
7. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the reasonable fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities, the Guarantees and the Debt
Securities under the Act and all other reasonable expenses in connection with
the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Company Agreement
(including any amendment or supplement to the Indenture), the Securities, the
Common Securities, the Debt Securities, any Purchase Contract Agreement, any
Pledge Agreement, any Remarketing Agreement, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities and the Debt Securities; (iii) all reasonable expenses in connection
with the qualification of the Securities and, if necessary, the Debt Securities,
for offering and sale under state securities laws as provided in Section 6(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment Surveys up to an aggregate amount not to exceed
$5,000; (iv) any fees charged by securities rating services for rating the
Securities and the Debt Securities; (v) any filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with, any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities and the issuance of the
Guarantees and the Debt Securities; (vi) the cost of preparing the Securities
and the Debt Securities; (vii) the reasonable fees and expenses of any Indenture
Trustee, Purchase Contract
16
Agent, Collateral Agent, Remarketing Agent, Preferred Guarantee Trustee (as
defined in any Preferred Securities Guarantee Agreement) or other trustee
(including any trustee under any Trust Agreement), and any agent of any of the
foregoing and the reasonable fees and disbursements of counsel for any such
trustee in connection with any Operative Agreement, Company Agreement, the
Securities and the Debt Securities (it being understood that, as among the
Company and such parties, such fees and expenses shall not exceed $5,000);
(viii) any reasonable fees and expenses in connection with listing the
Securities or related Underlying Securities and the Debt Securities and the cost
of registering the Securities under Section 12 of the Exchange Act; (ix) the
reasonable cost and charges of any transfer agent or registrar or dividend
disbursing agent and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 9 and 12 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
8. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Trust and the Company
in or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Trust and the
Company shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the 1933 Act Rules and Regulations and in
accordance with Section 6(a) hereof; if the Trust and the Company have
elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., Washington, D.C.
time, on the date of the applicable Pricing Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated each Time of
Delivery for such Designated Securities, with respect to the validity
of the Designated Securities and such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxxxx X. Xxxxxx, Esq., Associate General Counsel of the
Company, shall have furnished to the Representatives a written
opinion or opinions, dated each Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives,
to the effect that:
17
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Michigan, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge after
due inquiry and other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to
which the Trust, the Company or any of its subsidiaries (other
than the Trust) is a party or of which any property of the
Trust, the Company or any of its subsidiaries (other than the
Trust) is the subject which, if determined adversely to the
Trust, the Company or any of its subsidiaries (other than the
Trust), would, individually or in the aggregate, have a
material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the
Trust or the Company and its subsidiaries (other than the
Trust), and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) Each of this Agreement, the Pricing Agreement,
and if applicable, the Remarketing Agreement, has been duly
authorized, executed and delivered by the Company;
(v) The Company Agreements have each been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; the Trust Agreement,
the Indenture and the Guarantee have each been duly qualified
under the Trust Indenture Act; and the Company Agreements, the
Designated Securities and the Common Securities of the Trust
will conform to the descriptions thereof in the Prospectus;
each of the Administrative Trustees of the Trust (as defined
in the Trust Agreement) is an officer of the Company and has
been duly authorized by the Company to execute and deliver the
Trust Agreement;
(vi) If the Designated Securities include Purchase
Contracts, the shares of Common Stock to be issued by the
Company pursuant to the related Purchase Contracts have been,
or as of the date of the applicable Pricing Agreement will
have been, duly authorized and reserved for issuance by the
Company for issuance pursuant to the related Purchase
Contracts and, when issued in accordance with the Purchase
Contracts and the Purchase Contract Agreement, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or similar rights of any securityholder of the
Company; no holder of such Underlying Securities will be
subject to personal liability solely by reason of
18
being such a holder; and the Common Stock will conform to the
description thereof contained in the Prospectus as amended or
supplemented with respect to the Designated Securities;
(vii) If the Designated Securities include Purchase
Contracts, the Purchase Contracts, which Purchase Contracts
are evidenced by the Unit Certificates, have been, or as of
the date of the applicable Pricing Agreement will have been,
duly and validly authorized by the Company and, when issued
and delivered by the Company pursuant to this Agreement and
the Pricing Agreement with respect to such Designated
Securities and executed by the other parties thereto, will
constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Purchase Contracts and Unit Certificates will conform to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(viii) If the Designated Securities include Units,
the Units have been, or as of the date of the applicable
Pricing Agreement will have been, duly and validly authorized
by the Company and, when issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to the
Designated Securities against payment therefor, will be duly
and validly issued, fully paid and non-assessable and will
constitute valid and binding obligations of the Company
entitled to the benefits of and subject to the obligations of
the Purchase Contract Agreement and enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; the Unit Certificates are in the
form contemplated by the Purchase Contract Agreement, and the
Units will conform to the descriptions thereof contained in
the Prospectus as amended or supplemented with respect to such
Designated Securities;
(ix) If the Designated Securities include Purchase
Contracts and Units, the Purchase Contract Agreement and the
Pledge Agreement, have been, or as of the date of the
applicable Pricing Agreement will have been, duly and validly
authorized by the Company and, when issued and delivered
pursuant to this Agreement and the Pricing Agreement with
respect to the Designated Securities and executed and
delivered by the other parties thereto, will constitute valid
and binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; the Purchase Contract
Agreement and the Pledge Agreement conform or will conform to
the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated
Securities; and the Pledge Agreement creates, as collateral
security for the performance when due by the holders from time
to time of the Units of their
19
respective obligations under the Purchase Contracts
constituting part of such Units, a legal, valid and perfected
security interest (as that term is defined in the Uniform
Commercial Code, as adopted and currently in effect in the
State of New York), in favor of the Collateral Agent, in the
right, title and interest of such holders in the Pledged
Securities (as defined in the Pledge Agreement) constituting a
part of such Units;
(x) The issue by the Company of the Guarantee, the
issue and sale of the Debt Securities and, as applicable, the
entry into Purchase Contracts by the Company, the issue and
sale of the Underlying Securities by the Company pursuant to
the Purchase Contracts, and the compliance by the Company with
all of the provisions of this Agreement, any Pricing
Agreement, the Company Agreements or the Operative Agreements,
as applicable, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any material contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the properties
or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Amended and
Restated Articles of Incorporation or By-Laws of the Company
or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the
Company or any of its properties, except that such counsel
need express no opinion as to rights to indemnity which may be
limited by applicable law; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for
the issue and sale of the Debt Securities, the issue of the
Guarantee, the entry into Purchase Contracts by the Company,
the issue and sale of the Underlying Securities by the Company
pursuant to the Purchase Contracts, the execution, delivery,
performance of and compliance by the Company with all of the
provisions of this Agreement, the Pricing Agreement, the
Company Agreements, or, as applicable, the Operative
Agreements or the consummation by the Company of the
transactions contemplated by this Agreement, any Pricing
Agreement, the Company Agreements or, as applicable, the
Operative Agreements, except such as have been, or will have
been prior to the Time of Delivery, obtained under the Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) Neither the Company nor any of its Significant
Subsidiaries is in violation of its By-laws or articles of
incorporation or in default in the performance or observance
of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it or any of its properties may be bound;
20
(xii) [The Designated Securities, upon issuance, will
be excluded or exempted under, or beyond the purview of, the
Commodity Exchange Act, and the Commodity Exchange Act
Regulations.]
(xiii) The statements set forth in the Prospectus as
amended or supplemented under the captions "Description of
Capital Stock", "Description of Debt Securities", "Description
of Trust Preferred Securities", "Description of Trust
Preferred Securities Guarantees", and "Description of Common
Stock Purchase Contracts and Units", (or similar captions)
insofar as they purport to constitute a summary of the terms
of the Securities, the Common Securities, the Debt Securities,
the Guarantees, the Purchase Contracts and Units and the
Company Agreements, and, insofar as they purport to describe
the provisions of the laws and documents referred to therein,
are accurate and fair summaries in all material respects;
(xiv) All of the issued and outstanding Common
Securities of the Trust will be directly owned of record by
the Company and, to such counsel's knowledge, free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity;
(xv) Neither the Company nor the Trust is, or after
giving effect to the offering and sale of the Designated
Securities and the Guarantee, will be, an "investment
company", as such term is defined in the Investment Company
Act;
(xvi) The Company is a "holding company" (within the
meaning of the PUHC Act) which is exempt from being required
to seek approval to perform its obligations under this
Agreement and the Securities pursuant to Rule 2 of the rules
and regulations promulgated pursuant to the PUHC Act;
(xvii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein and except
for those parts of the Registration Statement which constitute
the Statements of Eligibility and Qualification of the
Trustees (the "Forms T-1"), as to which such counsel need
express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason
to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the
21
circumstances under which they were made when such documents
were so filed, not misleading; and
(xviii) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company or the Trust prior to
the Time of Delivery for the Designated Securities (other than
the financial statements and related schedules and other
financial data therein and that portion of the Registration
Statement which constitutes the Forms T-1, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act, the 1933
Act Rules and Regulations and the Trust Indenture Act and the
rules and regulations thereunder; although such counsel does
not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (xiii) of this Section 8(c), such
counsel has no reason to believe that, as of its effective
date, the Registration Statement or any further amendment
thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the Commission) made by the
Company prior to the Time of Delivery (other than the
financial statements and related schedules and other financial
data therein and that portion of the Registration Statement
which constitutes the Forms T-1, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company or the Trust prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial data therein and that portion of
the Registration Statement which constitutes the Forms T-1, as
to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company or the Trust prior to the Time of Delivery
(other than the financial statements and related schedules and
other financial data therein and that portion of the
Registration Statement which constitutes the Forms T-1, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as
required;
22
(d) Special Delaware counsel to the Trust and the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion or opinions, dated each Time of
Delivery for such Preferred Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a statutory trust under the
Delaware Act, and all filings required as of the date of such
opinion under the laws of the State of Delaware with respect
to the creation and valid existence of the Trust as a
statutory trust have been made;
(ii) Under the Delaware Act and the Trust Agreement,
the Trust has the trust power and authority to own property
and conduct its business, all as described in the Prospectus;
(iii) The Preferred Securities [,whether issued
separately or with Units,] have been duly authorized by the
Trust Agreement and are duly and validly issued subject to the
qualifications set forth in this paragraph and fully paid and,
non-assessable undivided beneficial interests in the assets of
the Trust, and are entitled to the benefits provided by the
Trust Agreement. The Securityholders, as beneficial owners of
the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the
State of Delaware. We note that the Securityholders may be
obligated, pursuant to the Trust Agreement to make certain
payments under the Trust Agreement, (a) to provide indemnity
and security in connection with and pay taxes or governmental
charges arising from transfers of certificates evidencing the
Preferred Securities and the issuance of replacement
certificates, and (b) to provide security and indemnity in
connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its
rights and remedies under the Trust Agreement;
(iv) The Trust Agreement constitutes a valid and
binding obligation of the Company and the trustees of the
Trust, and is enforceable against the Company and the trustees
of the Trust, in accordance with its terms, subject, as to
enforcement, to the effect upon the Trust Agreement of (i)
bankruptcy, insolvency, reorganization, moratorium,
receivership, liquidation, fraudulent transfer and conveyance,
and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution;
(v) The issue and sale by the Trust of the Preferred
Securities and the Common Securities of the Trust, the
compliance by the Trust with this Agreement, the Pricing
Agreement, the Preferred Securities, the Common Securities of
the Trust and the Trust Agreement, and the consummation by the
Trust of the transactions herein and therein contemplated do
not violate (a) any provisions of the Certificate of Trust of
the Trust (as amended to date) or the
23
Trust Agreement, or (b) any applicable Delaware law or
administrative regulation;
(vi) Under the Delaware Act and the Trust Agreement,
the Trust has the requisite trust power and authority to (a)
execute, deliver and perform its obligations under this
Agreement and the Pricing Agreement, (b) issue and perform its
obligations under the Preferred Securities and the Common
Securities of the Trust, and (c) to purchase and hold the Debt
Securities;
(vii) The Common Securities of the Trust have been
duly authorized by the Trust and are validly issued and
undivided beneficial interests in the assets of the Trust and
are entitled to the benefits provided by the Trust Agreement;
(viii) Under the Delaware Act and the Trust
Agreement, the issuance of the Preferred Securities and the
Common Securities of the Trust is not subject to preemptive
rights;
(ix) No consent, approval, authorization, order or
registration with or qualification of or with any Delaware
court or Delaware governmental authority or Delaware agency is
required to be obtained by the Trust solely in connection with
the issuance and sale of the Preferred Securities and the
Common Securities of the Trust or the consummation of the
transactions contemplated by this Agreement or the Pricing
Agreement, other than the filing of the certificate of trust
pursuant to the Delaware Act;
(x) Under the Delaware Act and the Trust Agreement,
the execution and delivery by the Trust of this Agreement and
the Pricing Agreement, and the performance by the Trust of its
obligations hereunder and thereunder, have been duly
authorized by the requisite trust action on the part of the
Trust; and
(xi) Assuming that the Trust derives no income from
or connected with sources within the State of Delaware and has
no assets, activities (other than maintaining the Delaware
Trustee (as defined in the Trust Agreement) and the filing of
documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware and assuming
that the Trust is treated as a grantor trust for federal
income tax purposes, the holders of the Designated Securities
(other than those holders who reside or are domiciled in the
State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable
for any income tax imposed by the State of Delaware.
(e) Special Tax counsel for the Trust and the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated each Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that such firm confirms its opinion set
forth in the Prospectus as amended or supplemented under the caption
"Material United States Federal Income Tax Considerations" (or similar
caption) and that the Debt Securities will
24
be classified for United States federal income tax purposes as
indebtedness of the Company;
(f) Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New
York, as the Preferred Securities Guarantee Trustee, and to The Bank of
New York, as Property Trustee and the Preferred Securities Guarantee
Trustee, shall have furnished to the Representatives their written
opinion, dated each Time of Delivery for such Designated Securities, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) The Bank of New York is a banking corporation
duly organized, validly existing and in good standing under
the laws of the State of New York with all necessary corporate
power and authority to execute and delivery, and to carry out
and perform its obligations under the terms of the Trust
Agreement and the Preferred Securities Guarantee Agreement;
(ii) The execution, delivery and performance by The
Bank of New York, in its capacity as Property Trustee, of the
Trust Agreement, and the execution, delivery and performance
by The Bank of New York, in its capacity as the Preferred
Guarantee Trustee, of the Preferred Securities Guarantee
Agreement have been duly authorized by all necessary corporate
action on the part of The Bank of New York. The Trust
Agreement and the Preferred Securities Guarantee Agreement
have been duly executed and delivered by The Bank of New York,
in its capacity as Property Trustee, in the case of the Trust
Agreement, and by The Bank of New York, in its capacity as the
Preferred Guarantee Trustee, in the case of the Preferred
Securities Guarantee Agreement, and the Trust Agreement and
the Preferred Securities Guarantee Agreement constitute the
legal, valid and binding obligations of The Bank of New York,
enforceable against The Bank of New York in accordance with
their terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a
proceeding at law or in equity);
(iii) The execution, delivery and performance by The
Bank of New York, in its capacity as Property Trustee, of the
Trust Agreement, and the execution, delivery and performance
by The Bank of New York, in its capacity as Guarantee Trustee,
of the Preferred Securities Guarantee Agreement, do not
conflict with, or constitute a breach of, The Bank of New
York's charter or bylaws; and
25
(iv) No consent, approval or authorization of, or
registration with or notice to, any New York or federal
banking authority is required for the execution, delivery or
performance by The Bank of New York, in its capacity as
Property Trustee, of the Trust Agreement, or by The Bank of
New York, in its capacity as Preferred Guarantee Trustee, of
the Preferred Securities Guarantee Agreement.
(g) If applicable, counsel to the Purchase Contract Agent
shall have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Purchase Contract Agent is duly incorporated
and is validly existing as a [New York] banking association
with trust powers under the laws of [the State of New York]
with all necessary power and authority to execute, deliver and
perform its obligations under the Purchase Contract Agreement,
the Pledge Agreement and the Remarketing Agreement;
(ii) The execution, delivery and performance by the
Purchase Contract Agent of the Purchase Contract Agreement,
the Pledge Agreement and the Remarketing Agreement, and the
authentication and delivery of the Designated Securities have
been duly authorized by all necessary action on the part of
the Purchase Contract Agent. The Purchase Contract Agreement,
the Pledge Agreement and the Remarketing Agreement have been
duly executed and delivered by the Purchase Contract Agent,
and constitute the legal, valid and binding obligations of the
Purchase Contract Agent, enforceable against the Purchase
Contract Agent in accordance with their respective terms,
except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a
proceeding at law or in equity);
(iii) The execution, delivery and performance of the
Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement by the Purchase Contract Agent do not
conflict with or constitute a breach of the charter or by-laws
of the Purchase Contract Agent; and
(iv) No consent, approval or authorization, or
registration with or notice to, any New York or federal
governmental authority or agency is required for the
execution, delivery or performance by the Purchase Contract
Agent of the Purchase Contract Agreement, the Pledge Agreement
and the Remarketing Agreement.
(h) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at each Time of Delivery
for such Designated Securities, the independent
26
accountants of the Company who have certified the financial statements
of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter or letters, dated the date of
the Pricing Agreement to the effect set forth in Annex II hereto, and a
letter dated each Time of Delivery reaffirming the statements made in
their letters dated the date of the Pricing Agreement, except that the
specified date referred to in such letters delivered on such Time of
Delivery shall be a date not more than three business days prior to
such Time of Delivery, and with respect to such letters dated each such
Time of Delivery, as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives (a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex II
hereto);
(i) (i) Neither the Trust nor the Company and any of its
Significant Subsidiaries, shall have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information
is given in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities there shall not have
been any change in the capital stock or long-term debt of the Trust or
the Company or any of its Significant Subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change (other than such as may have occurred in the ordinary
course of business), in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Trust or the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities, the effect of which, in any such case described
in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse to the Trust or the Company and its subsidiaries,
taken as a whole, as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Firm Designated
Securities or Option Securities or both on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(j) At each Time of Delivery, the Preferred Securities shall
be rated at least _________ by Xxxxx'x Investor Service, Inc., and
Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx Companies,
Inc., respectively, and the Company shall have delivered to the
Underwriters a letter from each such rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Preferred
Securities have such ratings on such date; and after the date of the
Pricing Agreement relating to the Designated Securities (i) no
downgrading shall have occurred in the rating accorded the Company's
debt securities or the Preferred Securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of
27
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or the Preferred Securities;
(k) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York or Michigan
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Designated Securities or Option Securities or both
on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Securities;
(l) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses on
the New York business day next succeeding the date of any Pricing
Agreement for such Designated Securities; and
(m) The Trust and the Company shall have furnished or caused
to be furnished to the Representatives at each Time of Delivery for the
Designated Securities certificates of officers of the Company and of an
Administrative Trustee of the Trust satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Trust
and the Company herein at and as of such Time of Delivery, as to the
performance by the Trust and the Company of all of their respective
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (i) of
this Section and as to such other matters as the Representatives may
reasonably request.
(n) In the event that the Pricing Agreement provides for
Option Securities and the Underwriters exercise their option pursuant
to Section 3 hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company
hereunder shall be true and correct as of each Subsequent Time of
Delivery for the Option Securities, and the Underwriters shall have
received:
(i) Unless the Time of Delivery is the First Time of
Delivery, an officer's certificate, dated such Time of
Delivery, confirming that the certificate delivered at the
First Time of Delivery pursuant to Section 8(m) hereof remains
true and correct as of such Time of Delivery.
(ii) The favorable opinion of Xxxxxx X. Xxxxxx, Vice
President and General Counsel, counsel of the Company, in form
and substance satisfactory to the Representatives, dated such
Time of Delivery, relating to the Option Securities and
otherwise substantially to the same effect as the opinions
required by Section 8(c) hereof;
28
(iii) The favorable opinion of counsel to the
Purchase Contract Agent, dated such Time of Delivery, relating
to the Option Securities and otherwise to the same effect as
the opinion required by Section 8(g) hereof.
(iv) The favorable opinion of counsel for the
Underwriters, dated such Time of Delivery, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 8(b) hereof.
(v) The favorable opinion of special tax counsel,
dated such Time of Delivery for the Preferred Securities,
relating to the Option Securities and otherwise to the same
effect as the opinion required in 8(e) hereof.
(vi) The favorable opinion of counsel for the Trust
and the Company, dated such Time of Delivery, relating to the
Option Securities and otherwise to the same effect as the
opinion required in 8(d) hereof.
(vii) The favorable opinion of counsel to the
Property Trustee and Preferred Guarantee Trustee, dated such
Time of Delivery, relating to the Option Securities and
otherwise to the same effect as the opinion required in 8(f)
hereof.
(viii) Unless the Time of Delivery is the First Time
of Delivery, a letter or letters from Deloitte & Touche LLP
(and each other applicable independent accountants), in form
and substance satisfactory to the Underwriters and dated such
Time of Delivery, substantially the same in scope and
substance as the letter or letters furnished to the
Underwriters at the First Time of Delivery pursuant to Section
8(h) hereof, except that the "specified date" in the letters
shall be a date not more than three business days prior to
such Time of Delivery.
9. (a) The Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that neither the Trust nor the Company
shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated
Securities, or any such amendment or supplement, in reliance upon and
in
29
conformity with written information furnished to the Trust and the
Company by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities.
(b) Each Underwriter will indemnify and hold harmless the
Trust and the Company against any losses, claims, damages or
liabilities to which the Trust may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Designated Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Designated Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to
the Trust and the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Trust
and the Company for any legal or other expenses reasonably incurred by
the Trust or the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and
30
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Trust and the Company on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the
Designated Securities to which such loss, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Trust and the Company on
the one hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Trust and the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before
deducting expenses) received by the Trust and the Company bear to the
total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Trust and the Company on
the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Trust, the Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
applicable Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in
proportion to their
31
respective underwriting obligations with respect to such Securities and
not joint. The obligations of the Trust and the Company in this
subsection (d) to contribute are joint and several.
(e) The obligations of the Trust and the Company under this
Section 9 shall be in addition to any liability which the Trust or the
Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within
the meaning of the Act; and the obligations of the Underwriters under
this Section 9 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each trustee, officer and director of the
Trust or the Company and to each person, if any, who controls the Trust
or the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to
purchase the Firm Designated Securities or Option Securities which it
has agreed to purchase under the Pricing Agreement relating to such
Designated Securities, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase
such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Designated
Securities or Option Securities, as the case may be, then the Trust and
the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to
the Representatives to purchase such Designated Securities on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Trust and the Company that they have so
arranged for the purchase of such Designated Securities, or the Trust
and the Company notify the Representatives that it has so arranged for
the purchase of such Designated Securities, the Representatives or the
Trust and the Company shall have the right to postpone a Time of
Delivery for such Designated Securities for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Trust
and the Company agree to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in the opinion of
the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Designated Securities or Option Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Trust and the Company as provided in subsection
(a) above, the aggregate number of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate
number of the Firm Designated Securities or Option Securities, as the
case may be, to be purchased at the respective Time of Delivery, then
the Trust shall have the right to require each non-defaulting
Underwriter to purchase the number of Firm Designated Securities or
Option Securities, as the case may be, which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each
32
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Firm Designated Securities or Option Securities, as the case
may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Designated Securities or Option Securities, as
the case may be, of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Designated Securities or Option Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Trust and the Company as provided in subsection
(a) above, the aggregate number of Firm Designated Securities or Option
Securities, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of the Firm Designated Securities
or Option Securities, as the case may be, to be purchased at the
respective Time of Delivery, as referred to in subsection (b) above, or
if the Trust and the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Firm Designated Securities or Option Securities, as the case may be, of
a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Firm Designated Securities or the Over-allotment
Option relating to such Option Securities, as the case may be, shall
thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Trust or the Company, except for the
expenses to be borne by the Trust and the Company and the Underwriters
as provided in Section 7 hereof and the indemnity and contribution
agreements in Section 9 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Trust and the Company and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Trust or the Company, or any trustee, officer or director or controlling person
of the Trust or the Company, and shall survive delivery of and payment for the
Securities.
12. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 10 hereof, neither the Trust nor the Company
shall then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Option Securities with respect to which such Pricing
Agreement or Over-allotment Option, as the case may be, shall have been
terminated except as provided in Sections 7 and 9 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Trust or
the Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but neither the Trust nor the Company
shall then be under further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 7 and 9 hereof.
33
13. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Trust or the Company shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Trust and the Company by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, each Trust, the Company
and, to the extent provided in Sections 9 and 11 hereof, the trustees, officers
and directors of each Trust and the Company and each person who controls any
Trust or the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
34
17. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
DTE Energy Company
By:
--------------------------------
Name:
Title:
DTE Energy Trust [II/III]
By:
--------------------------------
Name:
Title:
DTE Energy Trust [II/III]
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
By:
----------------------------------
35
ANNEX I
PRICING AGREEMENT
[Underwriters]
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o
______________, 200_
Ladies and Gentlemen:
DTE Energy Trust [II] [III], a statutory trust created under the
Delaware Statutory Trust Act of the State of Delaware (Chapter 38, Title 12, of
the Delaware Code, 12 Del. C. (ss.) 3801 et seq.) (the "Trust"), and DTE Energy
Company, a Michigan corporation (the "Company"), as sponsor of the Trust and as
guarantor, propose, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ___________, 20__ (the "Underwriting Agreement")
between the Trust and the Company on the one hand and ____________________ and
________, ________, _______ and _________ on the other hand, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"
consisting of Firm Designated Securities and any Option Securities the
Underwriters may elect to purchase). The principal asset of the Trust consists
of debt securities of the Company ("Debt Securities"), as specified in Schedule
II to this Agreement. The Designated Securities will be guaranteed by the
Company to the extent set forth in the Designated Guarantee with respect to such
Designated Securities (the "Guarantee").
The Company proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, to issue and sell to the Underwriters named
in Schedule I hereto the Purchase Contracts and Units of the Company as
specified in Schedule II hereto (also referred to herein as "Designated
Securities").
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
and warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the
I-1
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 13 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein (including
Schedule II hereto) and in the Underwriting Agreement incorporated herein by
reference, (a) the Trust, and the Company in the case of the Purchase Contracts
and Units, agree to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, and
the Company in the case of the Purchase Contracts and Units, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Firm Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto, and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Option Securities,
as provided below, the Trust, and the Company in the case of the Purchase
Contracts and Units, agree to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, and the Company in the case of the Purchase Contracts and Units, at the
purchase price to the Underwriters set forth in Schedule II hereto a
proportionate share of the number or amount of Option Securities as to which
such election shall have been exercised. Any such election to purchase Option
Securities may be exercised in whole at any time or in part from time to time by
written notice from the Representatives to the Trust and the Company given
within a period of 30 calendar days after the date of this Pricing Agreement,
setting forth the aggregate number or amount of Option Securities to be
purchased and the date on which such Option Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company and the Trust
otherwise agree in writing, no earlier than ten or later than ten business days
after the date of such notice.
I-2
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Trust, the Company and for each of the
Representatives plus one for each counsel counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters, on the one hand, and the Trust and the Company, on the
other hand. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Trust and the Company for examination upon request, but without warranty on
the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
DTE Energy Company
By:
-------------------------------
Name:
Title:
DTE Energy Trust [II] [III]
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
[ ]
By:
-------------------------------
On behalf of each of the Underwriters
I-3
SCHEDULE I
NUMBER OF FIRM [MAXIMUM NUMBER OF OPTION
DESIGNATED SECURITIES TO SECURITIES WHICH MAY BE
UNDERWRITER BE PURCHASED PURCHASED]
----------- ---------- ----------
[NAMES OF CO-REPRESENTATIVES]............
[NAMES OF UNDERWRITERS]..................
Total...........................
==================== ======================
I-4
SCHEDULE II
TRUST:
DTE Energy Trust [II] [III]
TITLE OF DESIGNATED SECURITIES:
AGGREGATE LIQUIDATION AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE TO UNDERWRITERS:
UNDERWRITERS' COMPENSATION:
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Designated
Securities will be used by the Trust to purchase the Debt Securities of
the Company, the Company hereby agrees to pay at each Time of Delivery
to [the Representatives], for the accounts of the several Underwriters,
an amount equal to $___ per Designated Security for the Designated
Securities to be delivered at each Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
___ a.m. (New York City time), _______, 20__
TRUST AGREEMENT:
Amended and Restated Declaration of Trust dated as of _______, 20__
among the Company, as Sponsor, ___, as Property Trustee, ___, as
Delaware Trustee, the Administrating Trustees named therein and the
several Holders of Trust Securities
II-1
DESIGNATED GUARANTEE:
Preferred Securities Guarantee Agreement dated as of ________, 20__
between the Company and ________, as Trustee
DESIGNATED DEBT SECURITIES:
[$_______aggregate principal amount of _________% Subordinated
Debentures, Series _________, due _________]
MATURITY:
__________ [(subject to (i) extension to a date not later than ________
and (ii) shortening to a date not earlier than __________)]
COUPON RATE:
_________%
PAYMENT DATES:
_______, _________, ________ and ________ of each year, commencing on
_________
EXTENSION PERIOD:
[_______quarters] [______ semi-annual periods]
REDEMPTION PROVISIONS:
[Set forth in Section ________ of the Trust Agreement]
SINKING FUND PROVISIONS:
No sinking fund provisions
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
-------------------
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
II-2
Address for Notices, etc.:
[OTHER TERMS]:
Stock Purchase Contracts and Units
[STOCK PURCHASE CONTRACTS AND UNITS]
TITLE OF DESIGNATED SECURITIES:
AGGREGATE AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS TO PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
II-3
TIME OF DELIVERY:
[ ] a.m. (New York City time), [ , 20___]
CLOSING LOCATION:
PAYMENT DATES:
TERMS OF PURCHASE CONTRACT:
NAMES AND ADDRESSES OF REPRESENTATIVES:
OTHER TERMS:
II-4
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
III-1
ANNEX II
Pursuant to Section 7(h) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related rules and regulations; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been furnished
to the representative or representatives of the Underwriters (the
"Representatives") such term to include an Underwriter or Underwriters
who act without any firm being designated as its or their
representatives and are attached to such letters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited statements of consolidated income, consolidated
balance sheets and condensed statements of consolidated cash flows
included in the Company's Quarterly Reports on Form 10-Q incorporated
by reference into the Prospectus as indicated in their reports thereon
copies of which are attached to such letters; and on the basis of
specified procedures including inquiries of officials of the Company
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years included or
Annex II-1
incorporated by reference in the Company's Annual Reports on Form 10-K
for such fiscal years;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited statements of consolidated
income, consolidated balance sheets and condensed statements
of consolidated cash flows included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange
Act and the published rules and regulations adopted by the
Commission, or (ii) any material modifications should be made
to the unaudited statements of consolidated income,
consolidated balance sheets and condensed statements of
consolidated cash flows included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
Annex II-2
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the rules and regulations adopted by the Commission
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated current
assets or shareholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(vii) In addition to the audit referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
Annex II-3
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at each Time of Delivery for
such Designated Securities.
Annex II-4
ANNEX III
Annex III-1
