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EXHIBIT 1(c)
CMS ENERGY CORPORATION
CMS ENERGY TRUST II
8.75% ADJUSTABLE CONVERTIBLE TRUST SECURITIES
(Stated Amount $41.50 per Unit)
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UNDERWRITING AGREEMENT
July 1, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
Banc of America Securities LLC
As Representatives of the several Underwriters
named in Schedule II hereto
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
CMS Energy Trust II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), and CMS Energy Corporation, a
Michigan corporation, as sponsor of the Trust and as guarantor (the "Company"),
propose, subject to the terms and conditions stated herein, to issue and sell to
the Underwriters (as defined in Section 14 hereof) an aggregate of 7,250,000
8.75% Adjustable Convertible Trust Securities (the "Firm Units"), consisting of
(i) the right to purchase certain common stock of the Company and (ii) certain
preferred securities of the Trust that are subject to a call option, as
described below. The Underwriters have designated the representatives named in
Schedule I hereto (the "Representatives") to execute this Agreement on their
behalf and to act for them in the manner provided in this Agreement.
In connection herewith, the Company and the Underwriters
propose, subject to the terms and conditions stated herein, to enter into the
Purchase Contracts (the "Purchase Contracts"), underlying an aggregate of
7,250,000 Firm Units, pursuant to the Master Unit Agreement to be dated as of
July 8, 1999 (the"Master Unit Agreement"), between the Company and The Bank of
New York, as Master Unit Agent (the "Unit Agent").
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Further, the Trust and the Company propose that the Trust,
subject to the conditions stated herein, issue and sell to the Underwriters, an
aggregate of 7,250,000 Trust Preferred Securities (liquidation amount $41.50 per
preferred security) (the "Trust Preferred Securities") underlying the Firm
Units. The Trust Preferred Securities will represent undivided beneficial
interests in the assets of the Trust, guaranteed on a subordinated basis by the
Company as to the payment of distributions and as to payments on liquidation or
redemption, to the extent set forth in a guarantee agreement to be dated as of
July 8, 1999 (the "Guarantee") between the Company and The Bank of New York, as
trustee (the "Guarantee Trustee"). In connection therewith, the Trust is to
purchase, with the proceeds from the sale of its Trust Preferred Securities and
its Trust Common Securities (liquidation amount $41.50 per common security) (the
"Trust Common Securities"), 8.625% Subordinated Debentures due 2004 (the "Junior
Subordinated Debentures") of the Company, to be issued pursuant to an Indenture
dated as of June 1, 1997 (the "Base Indenture") between the Company and The Bank
of New York, as trustee (the "Debenture Trustee"), as supplemented by the Term
Resolution of the Company (the "Term Resolution", and together with the Base
Indenture, the "Indenture"), dated as of July 1, 1999, relating to the issuance
of the Junior Subordinated Debentures. The Company will be the holder of 100% of
the Trust Common Securities. The Trust will be subject to the terms of an
Amended and Restated Declaration of Trust (the "Trust Agreement"), among the
Company and the trustees of the Trust (the "CMS Trustees"), including The Bank
of New York, as property trustee (the "Property Trustee"). The Trust Agreement,
the Indenture and the Guarantee will be qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
Further, the Underwriters will, on behalf of the initial
holders of the Units, sell Call Options (the "Call Options") to ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation (in its capacity as the holder of the
Call Options, the "Call Option Holder") pursuant to the Call Option Agreement
dated as of July 8, 1999 between the Call Option Holder and the Unit Agent (the
"Call Option Agreement") relating to the Trust Preferred Securities. The Call
Option Agreement will entitle the Call Option Holder to acquire the Trust
Preferred Securities (or Junior Subordinated Debentures substituted therefor),
on or before the Call Option Expiration Date (as defined in the Call Option
Agreement), in exchange for the Aggregate Call Option Exercise Consideration (as
defined in the Call Option Agreement).
In connection with the Master Unit Agreement and the Call
Options, and pursuant to the Pledge Agreement, to be dated as of July 8, 1999
(the "Pledge Agreement"), among the Company, the Unit Agent, the Call Option
Holder and Chase Manhattan Bank, as collateral agent (the "Collateral Agent"),
the Trust Preferred Securities and any substituted securities will be pledged
(the "Pledged Securities") by the Unit Agent, on behalf of the holders of the
Units (the "Holders"), to secure the Holders' obligations to the Company and the
Call Option Holder under the Purchase Contract and Call Option, respectively.
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In addition, subject to the terms and conditions herein, the
Company proposes to grant the Underwriters an option to enter into 1,087,500
additional Purchase Contracts and the Trust and the Company propose to grant the
Underwriters an option to purchase up to 1,087,500 additional Trust Preferred
Securities, and, in the event the Underwriters enter into any such additional
Purchase Contracts, the Underwriters propose to purchase a number of additional
Trust Preferred Securities equal to such number of additional Purchase
Contracts, pledge such Trust Preferred Securities to the Collateral Agent and
sell Call Options relating to such Trust Preferred Securities to the Call Option
Holder (the Units resulting therefrom being the "Optional Units"). The Firm
Units and any Optional Units purchased by the Underwriters are herein called the
"Units".
The rights to purchase newly issued shares of common stock,
$0.01 par value per share, of the Company (the "Common Stock") to be issued upon
the settlement of the Purchase Contracts (the "Purchase Contract Shares"),
together with the Trust Preferred Securities or other Pledged Securities and
subject to (a) the obligations owed to the Company under the Purchase Contract,
(b) the obligations owed to the Call Option Holder under the Call Option and (c)
the pledge arrangements under the Pledge Agreement that secures the foregoing
obligations, collectively constitute a Unit.
1. Representations and Warranties of the Company and the Trust. Each of
the Trust and the Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3, as amended
(Registration Nos. 333- 68937 and 333-68937-01) (the "Initial
Registration Statement") in respect of the Units, including the
Purchase Contracts, the Purchase Contract Shares, the Trust Preferred
Securities, the Junior Subordinated Debentures, the Guarantee and the
Call Options, 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 such registration statement, but including all documents
incorporated by reference in the prospectus included 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 became effective
upon filing, no other document with respect to the Initial Registration
Statement or 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 each in the form heretofore delivered
to the Representatives and Current Reports on Form 8-K dated June 29
and June 30, 1999); no stop order suspending the effectiveness of the
Initial Registration Statement is in effect and no proceedings for such
purposes are pending before or, to the knowledge of the Company,
threatened by the Commission (any preliminary prospectus included in
such 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
and the Rule 462(b) Registration Statement, if any, including all
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exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the registration statement became effective or such part
of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Units, 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, is 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 incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any report of the Company filed pursuant to Section 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 Securities in the form in which it
is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) 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 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 or through the
Representatives on behalf of any Underwriter expressly for use in the
Prospectus as amended or supplemented relating to the Units or to any
statements in or omissions from that part of the Registration Statement
that shall constitute the Statements of Eligibility and Qualification
under the Trust Indenture Act of the Debenture Trustee, the Guarantee
Trustee and the Property Trustee;
(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were filed (or, if
an amendment with respect to any such document was filed, when such
amendment was filed) with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the
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Commission promulgated thereunder, and any further documents so filed
and incorporated by reference will, when they are filed with the
Commission, conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
promulgated thereunder; none of such documents, when filed (or, if an
amendment with respect to any such document was filed, when such
amendment was filed), 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, in light of the circumstances
under which they were made, not misleading; and no such further
document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading;
(d) There has not been any material and adverse change in the
business, properties or financial condition of the Company and its
Subsidiaries (as defined in Rule 405 under the Act, and hereinafter
called the "Subsidiaries"), taken as a whole, from that set forth in
the Registration Statement and the Prospectus (other than changes
referred to in or contemplated by the Registration Statement or the
Prospectus);
(e) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Michigan and has all requisite authority to own or lease its
properties and conduct its business as described in the Prospectus and
to consummate the transactions contemplated hereby, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business as described in the
Prospectus 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; each significant
subsidiary (as defined in Rule 405 under the Act, and hereinafter
called a "Significant Subsidiary") of the Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has all
requisite authority to own or lease its properties and 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 as described in the Prospectus 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 the Company has the requisite power
and authority to authorize the offering of the Junior Subordinated
Debentures and the Purchase Contract Shares, to exercise, deliver and
perform the Purchase Contracts, the Master Unit Agreement, the Pledge
Agreement, the Guarantee, the Indenture, the Trust Agreement and this
Agreement, and to issue, sell and deliver the Junior Subordinated
Debentures and the Purchase Contract Shares;
(f) The shares of Common Stock of the Company issued and
outstanding prior to the issuance and sale of the Units have been duly
authorized and are validly issued, fully paid and non-assessable; the
Purchase Contract Shares to be issued and sold by the Company
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pursuant to the Purchase Contracts and the Master Unit Agreement have
been duly authorized and reserved for issuance and, when issued and
delivered against payment therefor as provided in the Purchase
Contracts and the Master Unit Agreement, will be validly issued, fully
paid and non-assessable and conform to the description of Common Stock
in the Prospectus;
(g) The Trust Preferred Securities underlying the Units have
been duly and validly authorized by the Trust, and, when the Trust
Preferred Securities are issued and delivered, such Trust Preferred
Securities will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the Trust
Preferred Securities will conform in all material respects to the
description thereof contained in the Prospectus; the issuance of the
Trust Preferred Securities is not subject to any preemptive or other
similar rights; the Trust Preferred Securities will have the rights set
forth in the Trust Agreement, and the terms of the Trust Preferred
Securities are valid and binding on the Trust;
(h) The Trust Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued undivided beneficial interests in the assets of the
Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Trust Common
Securities is not subject to preemptive or other similar rights; at
each Time of Delivery (as defined in Section 3 hereof), all of the
issued and outstanding Trust Common Securities will be directly owned
by the Company free and clear of any security interest, mortgage,
pledge, claim, lien or encumbrance (each, a "Lien"); and the Trust
Common Securities and the Trust Preferred Securities are the only
interests authorized to be issued by the Trust;
(i) Except for the outstanding shares of preferred stock of
Consumers Energy Company, the 8.36% Trust Originated Preferred
Securities of Consumers Power Company Financing I, the 8.20% Trust
Originated Preferred Securities of Consumers Energy Financing II and
the 7.75% Convertible Quarterly Income Preferred Securities of CMS
Energy Trust I, all of the outstanding capital stock of each of
Consumers Energy Company and CMS Enterprises Company is owned directly
or indirectly by the Company, free and clear of any Lien, and there are
no outstanding rights (including, without limitation, preemptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity
interest in any of Consumers Energy Company and CMS Enterprises Company
or any contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any such capital stock, any such
convertible or exchangeable securities or any such rights, warrants or
options;
(j) The capital stock of the Company, including the Common
Stock, conforms in all material respects to the description thereof in
the Prospectus;
(k) Each of the Company and its Significant Subsidiaries has
all necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has
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made all declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory organizations and
all courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole;
(l) No order, license, consent, authorization or approval of,
or exemption by, or the giving of notice to, or the registration with
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, and no filing,
recording, publication or registration in any public office or any
other place, was or is now required to be obtained by the Company to
authorize its execution or delivery of, or the performance of its
obligations under, this Agreement, except such as have been obtained or
may be required under state securities or Blue Sky laws or as referred
to in the Prospectus in connection with the purchase and distribution
of the Units, the Purchase Contracts, the Master Unit Agreement, the
Pledge Agreement, the Guarantee, the Trust Agreement and the Indenture,
or to issue, sell and deliver the Junior Subordinated Debentures and
the Purchase Contract Shares;
(m) No order, license, consent, authorization or approval of,
or exemption by, or the giving of notice to, or the registration with
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, and no filing,
recording, publication or registration in any public office or any
other place, was or is now required to be obtained by the Trust to
authorize its execution or delivery of, or the performance of its
obligations under, this Agreement, except such as have been obtained or
may be required under state securities or Blue Sky laws or as referred
to in the Prospectus in connection with the purchase and distribution
of the Units, and the Trust Agreement, or to issue, sell and deliver
the Trust Preferred Securities and the Trust Common Securities;
(n) The execution and delivery of this Agreement by the Trust,
the compliance by the Trust with all of the provisions of this
Agreement, the issuance and sale of the Trust Preferred Securities and
the Trust Common Securities by the Trust, the purchase of the Junior
Subordinated Debentures by the Trust, the distribution of the Junior
Subordinated Debentures by the Trust in the circumstances contemplated
by the Trust Agreement, the performance of this Agreement and the Trust
Agreement, and the consummation of each of the transactions
contemplated thereby did not and will not conflict with, result in a
breach of any of the terms or provisions of, or constitute a default or
require the consent of any party under the Trust Agreement, any
material terms or provisions of any material agreement or instrument to
which the Trust is a party, any existing material applicable law, rule
or regulation or any judgment, order or decree of any governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Trust or any of its properties or assets, or did or will result in
the creation or imposition of any Lien on the Company's properties or
assets;
(o) The execution and delivery of this Agreement by the
Company, the compliance by the Company with all of the provisions of
this Agreement, the entry into the Purchase
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Contracts by the Company, the issuance and sale of the Trust Preferred
Securities and the Trust Common Securities by the Trust, the sale of
the Junior Subordinated Debentures by the Company to the Trust, the
distribution of the Junior Subordinated Debentures by the Trust in the
circumstances contemplated by the Trust Agreement, the issuance and
sale by the Company of the Purchase Contract Shares, the execution,
delivery and performance of this Agreement, the Purchase Contracts, the
Master Unit Agreement, the Pledge Agreement, the Guarantee, the Trust
Agreement and the Indenture, and the consummation of each of the
transactions contemplated thereby, did not and will not conflict with,
result in a breach of any of the terms or provisions of, or constitute
a default or require the consent of any party under the Company's
Articles of Incorporation or by-laws, any material terms or provisions
of any material agreement or instrument to which the Company is a
party, any existing material applicable law, rule or regulation or any
judgment, order or decree of any governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
properties or assets, or did or will result in the creation or
imposition of any Lien on the Company's properties or assets;
(p) Except as disclosed in the Prospectus, there is no action,
suit, proceeding, inquiry or investigation (at law or in equity or
otherwise) pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary by any governmental authority
that (i) questions the validity, enforceability or performance of this
Agreement or the Units or (ii) if determined adversely, is likely to
have a material adverse effect on the business or financial condition
of the Company and its Subsidiaries, taken as a whole, or materially
adversely affect the ability of the Company to perform its obligations
hereunder or the consummation of the transactions contemplated by this
Agreement;
(q) Except as set forth in the Prospectus, no event or
condition exists that constitutes, or with the giving of notice or
lapse of time or both would constitute, a default or any breach or
failure to perform by the Company or any of its Significant
Subsidiaries in any material respect under any indenture, mortgage,
loan agreement, lease or other material agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or
by which it or any of its Significant Subsidiaries, or any of their
respective properties, may be bound;
(r) Neither the Company, the Trust nor any of the Subsidiaries
is, after giving effect to the offering and sale of the Units, will be
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "Investment Company Act"). The Trust is
not required to be registered under the Investment Company Act;
(s) The Units have been approved for listing on the New York
Stock Exchange, subject to notice of issuance;
(t) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the trust power and authority to own property and conduct its
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business as described in the Prospectus, and has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Prospectus; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Trust Agreement between the Company and the CMS Trustees named therein
and the agreements and instruments contemplated by the Trust Agreement
and described in the Prospectus; based on expected operations and
current law, the Trust is not and will not be classified as an
association taxable as a corporation for United States federal income
tax purposes; and, to the knowledge of each of the Company and the
Trust, the Trust is not a party to or subject to any action, suit or
proceeding of any nature;
(u) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and constitutes a valid and
binding obligation of each of the Company and the Trust, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity);
(v) The Purchase Contracts underlying the Units have been duly
authorized and when validly executed and delivered by the Company and
the other parties thereto pursuant to this Agreement and the Master
Unit Agreement, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity); and the Purchase Contracts will
conform to the descriptions thereof in the Prospectus;
(w) The Master Unit Agreement and the Pledge Agreement, have
each been duly authorized by the Company and, when executed and
delivered by the Company and the other parties thereto, will constitute
valid and binding obligations, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity); the Master Unit Agreement and the Pledge Agreement
conform or will conform to the descriptions thereof in the Prospectus;
and the Pledge Agreement creates, as collateral security, for the
performance when due, by the Holders, of the respective obligations
created under the Purchase Contracts and Call Options, a legal, valid
and perfected security interest (as that term is defined in the Uniform
Commercial Code, as adopted and 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 that constitute a part of the Units;
(x) The Guarantee, the Junior Subordinated Debentures, the
Trust Agreement and the Indenture have each been duly authorized and
when validly executed and delivered by the Company and, in the case of
the Guarantee, by the Guarantee Trustee and, in the case of the Trust
Agreement, by the CMS Trustees and, in the case of the Indenture, by
the Debenture
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Trustee, and, in the case of the Junior Subordinated Debentures, when
validly authenticated and delivered by the Debenture Trustee and, in
the case of the Guarantee, upon due execution, authentication and
delivery of the Junior Subordinated Debentures and upon payment
therefor, will constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity); the Junior Subordinated
Debentures are entitled to the benefits of the Indenture; the Trust
Agreement, the Indenture and the Guarantee have been duly qualified
under the Trust Indenture Act;
(y) Each of the Trust Agreement, the Guarantee, the Indenture
and the Junior Subordinated Debentures will conform in all material
respects to the description thereof contained in the Prospectus.
2. Sale of Units.
(a) Subject to the terms and conditions set forth herein:
(i) the Company and each of the Underwriters,
severally and not jointly, agree to enter into the Purchase
Contracts underlying the number of Firm Units set forth
opposite the name of such Underwriter in Schedule II hereto,
(ii) the Company and the Trust agree that the Trust
will sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase
from the Trust, at a purchase price of $41.50 per Trust
Preferred Security, the number of Trust Preferred Securities
underlying the number of Firm Units set forth opposite the
name of such Underwriter in Schedule II hereto, and
(iii) in the event and to the extent that the
Underwriters shall exercise the election to enter into
additional Purchase Contracts underlying Optional Units as
provided in sub-section (b) below,
(1) the Company and each of the
Underwriters, severally and not jointly, agree to
enter into that number of additional Purchase
Contracts as to which such election shall have been
exercised (to be adjusted by you so as to eliminate
fractional Purchase Contracts) determined by
multiplying such number of additional Purchase
Contracts by a fraction, the numerator of which is
the maximum number of Optional Units set forth
opposite the name of such Underwriter in Schedule II
hereto and the denominator of which is the maximum
number of Optional Units set forth in total opposite
the names of all such Underwriters in Schedule II
hereto, and
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(2) the Company and the Trust agree that the
Trust will sell to each of the Underwriters and each
of the Underwriters agrees, severally and not
jointly, to purchase from the Trust at the purchase
price set forth in clause (a) of this Section 2, a
number of Trust Preferred Securities equal to such
number of additional Purchase Contracts.
(b) The Company hereby grants to the Underwriters the right to
enter into at their election up to 1,087,500 Purchase Contracts
underlying Optional Units and the Company and the Trust hereby grant
the Underwriters the right to purchase from the Trust at their election
up to 1,087,500 Trust Preferred Securities, for the sole purpose of
covering overallotments in the sale of the Firm Units. Any such
election to enter into such additional Purchase Contracts and purchase
such Trust Preferred Securities may be exercised only by written notice
from you to the Company and the Trust, given within a period of 30
calendar days after the date of this Agreement and setting forth the
aggregate number of such additional Purchase Contracts to be entered
into and Trust Preferred Securities to be purchased (which shall be an
identical number) and the date on which the related Optional Units are
to be delivered, as determined by you but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or, unless you
and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent,
on behalf of the initial purchasers of the Units, the Trust Preferred
Securities underlying the Firm Units and the Optional Units with
respect to which the Company and the Underwriters have entered into
Purchase Contracts. Such pledge shall be effected by the delivery by
the Underwriters to the Collateral Agent in New York of the Trust
Preferred Securities to be pledged at the appropriate Time of Delivery
(as defined below) in accordance with the Pledge Agreement.
(d) The Underwriters further agree to sell, on behalf of the
initial purchasers of the Units, to the Call Option Holder a Call
Option with respect to each Trust Preferred Security purchased at a
purchase price of $0.0415 per Call Option at the appropriate Time of
Delivery.
(e) Unless the context otherwise requires, for purposes of
this Agreement, the act of entering into a Purchase Contract,
purchasing a Trust Preferred Security and selling a Call Option with
respect to such Trust Preferred Security shall be referred to as the
"purchase" of a Unit.
3. Delivery of Units.
(a) The Units to be purchased by each Underwriter shall be
delivered by or on behalf of the Company to such Underwriter, through
the facilities of the Depository Trust Company ("DTC"), for the account
of such Underwriter, against (i) payment by or on behalf of such
Underwriter of the purchase price therefor by certified or official
bank check or checks, payable to the order of, or by wire transfer to
the account designated by, the
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Company in federal or other immediately available funds and (ii)
delivery to the Collateral Agent of the Trust Preferred Securities
relating to such Units. The Company will cause the certificates
representing the Units to be made available for checking and packaging
at least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the
"Designated Office"). The Units to be purchased by each Underwriter
hereunder will be represented by one or more definitive global Units in
book-entry form which will be deposited by or on behalf of the Company
with the DTC or its designated custodian. The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on July 8,
1999 or such other time and date as the Underwriters, the Trust and the
Company may agree upon in writing, and, with respect to the Optional
Units, 9:30 a.m., New York City time, on the date specified by the
Representatives in the written notice given by the Representatives of
the Underwriters' election to purchase such Optional Units, or such
other time and date as the Representatives and the Company may agree
upon in writing. Such time and date for delivery of the Firm Units is
herein called the "First Time of Delivery," such time and date for
delivery of the Optional Units, if not the First Time of Delivery, is
herein called the "Second Time of Delivery," and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 6 hereof,
including the cross-receipt for the Units, will be delivered at such
time and date at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing
Location"), and the Units will be delivered at the Designated Office,
all at each Time of Delivery. A meeting will be held at the Closing
Location prior to each Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Agreement, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
4. Covenants of the Trust and the Company. The Trust and the Company,
jointly and severally, agree with each of the Representatives and each of the
Underwriters:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Units in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b); prior
to each Time of Delivery, to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented unless the Company has furnished the Representatives and
their counsel with a copy, for their review and comment, a reasonable
time prior to filing and has reasonably considered any comments of the
Representatives, and to make no such amendment or supplement to which
such counsel shall reasonably object on legal grounds in writing, after
consultation with the Representatives; to timely file all reports and
any definitive proxy or
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information statements required to be filed by the Trust or the Company
with the Commission pursuant to Sections 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 the Units, 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 Units, of the suspension of the
qualification of the Units 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 Units or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
(b) 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 during the period of time (not exceeding nine months) after the
date of the Prospectus when a Prospectus is required to be delivered
under the Act to furnish the Representatives in New York City with
copies of the Prospectus 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 after the expiration of nine
months in connection with the offering or sale of the Units, 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 prepare and file such
document and to furnish without charge as many copies as the
Representatives may reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(c) If the Company and the Trust elect to rely upon Rule
462(b), the Company and the Trust 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
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;
(d) To make generally available to the Company's
securityholders, as soon as practicable but in any event not later than
eighteen months after the effective date of the Registration Statement,
an "earning statement" (which need not be audited by independent public
accountants) covering a twelve-month period commencing after the
effective date of
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the Registration Statement and ending not later than 15 months
thereafter, which shall comply in all material respects with the
provisions of Section 11(a) of the Act and Rule 158 under the Act);
(e) To use its best efforts to qualify the Units for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably request, to comply 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 the Units, and to pay (or cause to be paid), or
reimburse (or cause to be reimbursed) the Representatives and their
counsel for, reasonable filing fees and expenses in connection
therewith (including the reasonable fees and disbursements of counsel
to the Representatives and filing fees and expenses paid and incurred
prior to the date hereof), provided, however, that the Company shall
not be required to qualify to do business as a foreign corporation or
as a securities dealer or to file a general consent to service of
process or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome;
(f) During the period beginning from the date hereof and
continuing for a period of 60 days after the issuance of the Units, not
to offer, sell, contract to sell or otherwise dispose of any Units,
Trust Preferred Securities or Common Stock or any other securities of
the Company which are substantially similar to the Units, including any
guarantee of such securities, or any securities convertible into or
exchangeable for or representing the right to receive any of the
foregoing securities, other than shares of Common Stock issuable upon
conversion of the Units or pursuant to the Company's Stock Purchase
Plan, Performance Incentive Stock Plan, Employee Stock Ownership Plan
and Employee Savings and Incentive Plan, without the prior written
consent of the Representatives;
(g) To use the net proceeds received by it from the sale of
the Units, pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(h) To use its best efforts to list, subject to notice of
issuance, the Units on the New York Stock Exchange.
5. Expenses. The Company covenants and agrees with the several
Representatives and the several Underwriters that the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Trust's and the Company's counsel and accountants in connection with the
registration of the Units under the Act and all other 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 dealers and the
Underwriters; (ii) the cost of any delivery to the Underwriters of any Blue Sky
Memorandum; (iii) all expenses in connection with the qualification of the Units
for offering and sale under state securities laws as provided in Section 4(e)
hereof, including the fees and disbursements of counsel for the Representatives
in connection with such qualification and in connection with the
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Blue Sky survey(s) up to an aggregate amount not to exceed $5,000; (iv) any fees
charged by securities rating services for rating the Units, the Trust Preferred
Securities and the Junior Subordinated Debentures; (v) the cost of preparing the
certificates for the Units, the Trust Preferred Securities, the Junior
Subordinated Debentures, the Trust Common Securities and any Purchase Contract
Shares; (vi) the fees and expenses of the CMS Trustees, the Debenture Trustee
and the Guarantee Trustee and any other agent thereof and the fees and
disbursements of their counsel (it being understood that as among the Company
and the Trust and such trustees, such fees and expenses shall not exceed
$5,000); (vii) the cost and charges of any transfer agent or registrar or
dividend disbursing agent; (viii) the fees and expenses of the Unit Agent,
Collateral Agent and Debenture Trustee and any agent of the Unit Agent,
Collateral Agent and Debenture Trustee and the fees and disbursements of any
counsel for the Unit Agent, Collateral Agent or Trustee in connection with the
Master Unit Agreement, the Pledge Agreement, the Call Option Agreement, the
Indenture and the Junior Subordinated Debentures, as the case may be and (ix)
all other reasonable 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 Section 8 hereof, the Representatives and the Underwriters will pay all of
their own costs and expenses, including, without limitation, the fees of their
counsel.
6. Conditions on the Obligations of the Underwriters. The obligations
of the Underwriters shall be subject to the condition that all representations
and warranties and other statements of the Trust and the Company herein are, at
and as of such Time of Delivery, 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 Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; if the Company has 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 this
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) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("▇▇▇▇▇▇▇ ▇▇▇▇"),
counsel for the Underwriters, shall have furnished to the
Representatives such written opinion or opinions, dated the appropriate
Time of Delivery, with respect to the formation of the Trust, insofar
as the federal laws of the United States and the laws of the State of
New York or the General Corporation Law of the State of Delaware or the
Delaware Business Trust Act are concerned, the validity of the Units,
the Trust Preferred Securities, the Junior Subordinated Debentures, the
Guarantee and the Prospectus, as well as 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;
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(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, Assistant General Counsel to the
Company, shall have furnished to the Representatives his written
opinion or opinions, dated such Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is a duly organized and validly
existing corporation in good standing under the laws of
Michigan, with power and authority (corporate and other) to
own its properties and conduct its business as described in
the Prospectus, as amended and supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, as amended or supplemented, 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) The Purchase Contract Shares to be issued and
sold by the Company pursuant to the Purchase Contracts and the
Master Unit Agreement have been duly authorized and reserved
for issuance and, when issued and delivered against payment
therefor as provided in the Purchase Contracts and the Master
Unit Agreement, will be duly and validly issued, fully paid
and non-assessable and will conform to the description of the
Common Stock in the Prospectus;
(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any property of
the Company or any of its Subsidiaries is the subject which,
if determined adversely to the Company or any of its
Subsidiaries, would in the aggregate have a material adverse
effect on the current or future consolidated financial
position, securityholders' equity or results of operations of
the Company and its Subsidiaries; and to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) To the best knowledge of such counsel, there are
no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments or sale or Liens
related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership
interest in, any Significant Subsidiary;
(vii) The issuance and sale of the Units being
delivered at such Time of Delivery, the entry by the Company
into the Purchase Contracts, the compliance by the Company
with all the provisions of this Agreement, the issuance and
sale of the
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Trust Preferred Securities and the Trust Common Securities by
the Trust, the sale of the Junior Subordinated Debentures by
the Company to the Trust, the issuance by the Company of the
Purchase Contract Shares pursuant to the Purchase Contracts
and the Master Unit Agreement, the distribution of the Junior
Subordinated Debentures by the Trust in the circumstances
contemplated by the Trust Agreement and the execution,
delivery and performance of this Agreement, the Purchase
Contracts, the Master Unit Agreements, the Pledge Agreements,
the Guarantee, the Trust Agreement and the Indenture and the
consummation of each of the transactions contemplated thereby,
will not conflict with or result in a breach or violation of
any of the material terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its
Subsidiaries is a party or by which the Company is bound or to
which any of the property or assets of the Company or any of
its Subsidiaries is subject (except for such breaches or
violations or defaults that would not have a material adverse
effect on the business, property or financial condition of the
Trust or of the Company and its Subsidiaries, taken as a
whole), nor will such action result in any violation of the
provisions of the Articles of Incorporation or by-laws of the
Company or any statute or any currently existing order, rule
or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of its properties
(other than the securities or Blue Sky laws of the various
states, as to which such counsel need express no opinion);
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issuance and
sale of the Units or the consummation by the Company of the
transactions contemplated herein, except such as have been
obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws (as to which
such counsel need express no opinion) in connection with the
purchase and distribution of the Units;
(ix) Neither the Company nor any of its Significant
Subsidiaries is in violation of its respective charters or
bylaws 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 agreement or instrument to which it
is a party or by which it or any of its properties may be
bound, except for such violations or defaults the existence of
which would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole;
(x) The statements made in the Prospectus under the
captions "Description of the Units," "Description of the
Purchase Contracts," "Description of the Call Options,"
"Pledged Securities and Pledge Agreement," "Certain Provisions
of Principal Agreements," "Description of the Trust Preferred
Securities," "Description of the Guarantee," "Description of
the Junior Subordinated Debentures," and
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"Relationship Among the Preferred Securities, the Debenture
and the Guarantee," insofar as such statements constitute
summaries of legal matters or documents referred to therein,
are accurate in all material respects; the Units, the Trust
Preferred Securities, the Junior Subordinated Debentures, the
Guarantee, the Trust Agreement, the Indenture and the Trust
Common Securities conform as to legal matters to the
description thereof and to the statements in regard thereto
contained in the Registration Statement and the Prospectus as
amended or supplemented;
(xi) The Company is not an "investment company"
within the meaning of the Investment Company Act. The Trust is
not required to be registered under the Investment Company
Act;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
operating statistics, financial statements, notes, auditors'
reports and related schedules therein, and any other financial
or statistical data included or incorporated by reference
therein, 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 they have 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 circumstances
under which they were made when such documents were so filed,
not misleading;
(xiii) The Registration Statement and the Prospectus
as amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time of
Delivery (other than the operating statistics, financial
statements, notes, auditors' reports and related schedules and
any other financial or statistical data included or
incorporated by reference therein, as to which such counsel
need express no opinion), comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
although he 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 (ix) of this
Section 6(c), he has no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of
Delivery (other than the operating statistics, financial
statements, notes, auditors' reports and related schedules and
any other financial or statistical data
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included or incorporated by reference therein, 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 prior to such Time
of Delivery (other than the operating statistics, financial
statements, notes, auditors' reports and related schedules and
any other financial or statistical data included or
incorporated by reference therein, 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 the light of the circumstances
under which they were made, not misleading or that, as of such
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 prior to such Time
of Delivery (other than the operating statistics, financial
statements, notes, auditors' reports and related schedules and
any other financial or statistical data included or
incorporated by reference therein, 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 the light of the circumstances
under which they were made, not misleading; and he 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;
(xiv) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent
that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and (b) the waiver of usury
contained in Section 5.13 of the Base Indenture may be
unenforceable;
(xv) The Junior Subordinated Debentures have been
duly authorized for issuance by the Company and, when
authenticated by the Debenture Trustee in accordance with the
terms of the Indenture, will be validly issued by the Company
and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, except to the extent that (a) enforcement thereof may
be limited by (i) bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or
hereafter in effect relating
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to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (b) the waiver of usury
contained in Section 5.13 of the Base Indenture may be
unenforceable;
(xvi) The Trust Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by (a) bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(xvii) The Guarantee has been duly authorized,
executed and delivered by the Company, and constitutes a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(xviii) Each of the Master Unit Agreement, the
Purchase Contracts being delivered at such Time of Delivery
and the Pledge Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the other parties thereto,
constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general principles (whether such
principles are considered in a proceeding in equity or in
law); the Master Unit Agreement, the Pledge Agreement and the
Purchase Contracts conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented; and
(xix) To the best of such counsel's knowledge, the
Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust
Agreement and described in the Prospectus; and to the best of
such counsel's knowledge, there are no legal or governmental
proceedings pending to which the Trust is a party or of which
any property of the Trust is the subject and no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
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The foregoing opinions may be limited to the laws of Delaware,
Michigan and the federal law of the United States. In giving such opinion, such
counsel may rely, as to matters of Delaware law, upon the opinion of ▇▇▇▇▇▇▇
▇▇▇▇, special Delaware counsel to the Trust and the Company, in which case the
opinion shall state that such counsel believes that you and he are entitled to
so rely.
(d) The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇, dated as of such Time of
Delivery, in form and substance to the effect that:
(i) Assuming that: (i) the Pledge Agreement has been
duly authorized executed and delivered by the Unit Agent on
behalf of each of the Holders from time to time, (ii) the
Pledge Agreement constitutes the legal, valid and binding
obligation of the Unit Agent on behalf of each Holder and of
each other party to such agreement enforceable against the
Unit Agent, each Holder and each other party in accordance
with its terms; (iii) the Unit Agent and each Holder has full
power, authority and legal right (including, without
limitation, any legal right dependent upon there being no
conflict with laws, governing documents or contracts) to make
and perform its obligations under the Pledge Agreement; then
such counsel is of the opinion that the provisions of the
Pledge Agreement are effective to create, in favor of the
Collateral Agent for the benefit of the Company and the Call
Option Holder to secure the obligations of the Holders under
the Purchase Contracts and the Call Options, a valid security
interest in each Holders' rights in the certificates
identified on Schedule I to the opinion (the "Pledged Trust
Securities"). Upon delivery of the Pledged Trust Securities to
the Collateral Agent in the State of New York, the security
interest of the Collateral Agent for the benefit of the
Company and the Call Option Holder in the Pledged Trust
Securities will be perfected. Such opinion will be subject to
customary assumptions and qualifications; and
(ii) Assuming that the Master Unit Agreement, the
Purchase Contract underlying the Units being delivered at such
Time of Delivery, and the Pledge Agreement have been duly
authorized, executed and delivered by the Company under
Michigan law, and subject to the enforceability of the choice
of law provisions thereof, each is a valid and legally binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as may be limited by (a)
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); provided,
however, that based on a review of applicable case law, upon
the occurrence of a Termination Event (as defined in the
Master Unit Agreement), Section 365 (e)(2) of the Bankruptcy
Code (11 U.S.C. Sections 101-1330, as amended) should not
substantively limit the provisions of Sections __ and __ of
the Master Unit Agreement and Section __ of the Pledge
Agreement that require termination of the Purchase Contracts
and release of the Collateral Agent's security interest in the
Trust Preferred Securities or
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other Pledged Securities; provided, however, that procedural
restrictions respecting relief from the automatic stay under
Section 362 of the Bankruptcy Code may affect the timing of
the exercise of such rights and remedies.
(e) Skadden, Arps, special tax counsel to the Trust and the
Company, shall have furnished to the Representatives such opinion or
opinions, dated such Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Trust will be classified as a grantor trust
and not as an association taxable as a corporation; and
(ii) Although the discussion set forth in the
Prospectus included as part of the Registration Statement
under the heading "CERTAIN FEDERAL INCOME TAX CONSEQUENCES"
does not purport to discuss all possible United States federal
income tax consequences of the purchase, ownership, and
disposition of Trust Preferred Securities and Firm Units, such
discussion constitutes, in all material respects, a fair and
accurate summary under current law of the material United
States federal income tax consequences of the purchase,
ownership, and disposition of the Trust Preferred Securities,
Firm Units and Common Stock to investors generally.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇, special Delaware counsel to the Trust and
the Company, shall have furnished to the Representatives, the Company
and the Trust their written opinion or opinions, dated as of such Time
of Delivery, in form and substance satisfactory to the Representatives,
to the effect that:
(i) This Agreement has been duly authorized, executed
and delivered by the Trust;
(ii) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act and has the trust power and
authority to conduct its business as described in the Trust
Agreement;
(iii) The Trust Agreement is a valid and binding
agreement of each of the Company and the Trust, enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by (a) bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(iv) Under the Delaware Business Trust Act and the
Trust Agreement, the Trust has the power and authority to (a)
execute and deliver, and to perform its obligations pursuant
to, this Agreement, and (b) issue and perform its obligations
under the Trust Preferred Securities;
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(v) The execution and delivery by the Trust of this
Agreement, and the performance by the Trust of its obligations
thereunder, have been duly authorized by all necessary action
on the part of the Trust;
(vi) The Trust Preferred Securities have been duly
authorized for issuance by the Trust and, when executed and
authenticated by the Property Trustee in accordance with the
terms of the Trust Agreement and delivered and paid for in
accordance with this Agreement, will be fully paid and
non-assessable undivided beneficial interests in the assets of
the Trust and will entitle the holders thereof to the benefits
of this Agreement except to the extent that enforcement of the
Trust Agreement may be limited by (a) bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law); and the holders of the Trust
Preferred Securities 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, except that the
holders of Trust Preferred Securities may be obligated,
pursuant to the Trust Agreement, to make payments, including
(i) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers
of the Trust Preferred Securities and (ii) to provide security
and indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under
the Trust Agreement; the issuance of the Trust Preferred
Securities is not subject to preemptive or other similar
rights under the Delaware Business Trust Act or the Trust
Agreement;
(vii) None of the execution and delivery by the Trust
of, or the performance by the Trust of its obligations under,
this Agreement, or the issuance and sale of the Trust
Preferred Securities by the Trust in accordance with the terms
of this Agreement or the consummation of the other
transactions contemplated hereby, will contravene any
provision of applicable law or the Trust Agreement or any
agreement or other instrument governed by the laws of the
State of Delaware binding upon the Trust as set forth in the
Trust's certificate, or any judgment, order or decree
applicable to the Trust as set forth in the Trust's
certificate, of any governmental authority;
(viii) No governmental approval is required for the
issuance and sale of the Trust Preferred Securities and the
Trust Common Securities by the Trust pursuant to this
Agreement or the consummation of the other transactions
contemplated hereby, except such as have been obtained and
made;
(g) On the date of the Prospectus and also at such Time of
Delivery, the independent accountants of the Company who have certified
the financial statements of the Company and its consolidated
Subsidiaries included or incorporated by reference in the
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Registration Statement shall have furnished to the Representatives
a letter, dated as of such date, (i) confirming that they are
independent public accountants within the meaning of the Act and the
applicable published rules and regulations of the Commission
thereunder, (ii) stating that in their opinion the financial statements
examined by them and included or incorporated by reference in the
Registration Statement complied as to form in all material respects
with the applicable accounting requirements of the Commission,
including applicable published rules and regulations of the Commission,
and (iii) covering, as of a date not more than five business days prior
to the date of such letter, such other matters as the Representatives
reasonably request;
(h) That, between the date of the execution of this Agreement
and such Time of Delivery, no material and adverse change shall have
occurred in the business, properties or financial condition of the
Company and its Subsidiaries, taken as a whole, which, in the judgment
of the Representatives, impairs the marketability of the Units (other
than changes referred to in or contemplated by the Registration
Statement or Prospectus);
(i) That, between the date of the execution of this Agreement
and such Time of Delivery, there has been no downgrading of the
investment ratings of the Company's debt securities or preferred stock
by Standard & Poor's Corporation, ▇▇▇▇▇'▇ Investors Service, Inc. or
Duff & ▇▇▇▇▇▇ Credit Rating Co., and the Company shall not have been
placed on "credit watch" or "credit review" with negative implications
by any of such statistical rating organizations if any of such
occurrences shall, in the judgment of the Representatives, after
reasonable inquiries on the part of the Representatives, impair the
marketability of the Units;
(j) Each of the Purchase Contracts, the Master Unit Agreement,
the Pledge Agreement, the Trust Agreement, the Guarantee and the
Indenture shall have been executed and delivered, in each case in a
form reasonably satisfactory to the Representatives;
(k) The Units shall have been duly listed, subject to notice
of issuance, on the New York Stock Exchange;
(l) The Company shall have complied with the provisions of
Section 4(b) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Trust and the Company shall have furnished or caused
to be furnished to the Representatives at such Time of Delivery
certificates of officers of the Trust and the Company to the effect
that to the best of such person's knowledge, information and belief (i)
there has been no material adverse change in the business, properties
or financial condition of the Company and its Subsidiaries, taken as a
whole or the Trust from that set forth in the Registration Statement or
Prospectus (other than changes referred to in or contemplated by the
Registration Statement or Prospectus), (ii) the representations and
warranties of the Trust and the Company herein at and as of the Time of
Delivery are true and correct, (iii) the Trust and the Company have
complied with all agreements and satisfied all conditions on their part
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to be performed or satisfied at or prior to the Time of Delivery, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
7. Condition on the Obligations of the Company and the Trust. The
obligations of the Company and the Trust shall be subject, in the discretion of
the Company and the Trust, to the condition that the Registration Statement
shall be effective under the Act and no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Act or
proceedings therefor initiated or threatened by the Commission.
8. Indemnification.
(a) The Trust and the Company, jointly and severally, will, to
the extent permitted by law, 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 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 Units, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Trust
and the Company by the Representatives expressly for use in the Prospectus as
amended or supplemented relating to the Units or with any statements in or
omissions from that part of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust Indenture Act of the
Debenture Trustee, the Guarantee Trustee and the Property Trustee, and except
that this indemnity shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) on account of any losses, claims, damages,
liabilities or actions, suits or proceedings arising from the sale of the Units
to any person if a copy of the Prospectus, as the same may then be supplemented
or amended (excluding, however, any document then incorporated or deemed
incorporated therein by reference), was not sent or given by or on behalf of
such Underwriter to such person (i) with or prior to the written confirmation of
sale involved or (ii) as soon as available after such written confirmation,
relating to an event occurring prior to the payment for and delivery to such
person of the Units involved in such sale, and the omission or alleged omission
or untrue statement or alleged untrue statement was corrected in the Prospectus
as supplemented or amended at such time.
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(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Trust and the Company against any losses,
claims, damages or liabilities to which the Trust and the Company 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 Units, 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 Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Trust
and the Company by 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 and the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) If a claim is made or an action, suit or proceeding
(including governmental investigations) is commenced or threatened against any
person as to which indemnity may be sought under subsection (a) or (b), such
person (the "Indemnified Person") shall notify the person against whom such
indemnity may be sought (the "Indemnifying Person"), promptly after any
assertion of such claim threatening to institute an action, suit or proceeding
or if such an action, suit or proceeding is commenced against such Indemnified
Person, promptly after such Indemnified Person shall have been served with a
summons or other first legal process, giving information as to the nature and
basis of the claim. Failure to so notify the Indemnifying Person shall not,
however, relieve the Indemnifying Person from any liability which it may have on
account of the indemnity under subsection (a) or (b) if the Indemnifying Person
has not been prejudiced in any material respect by such failure. Subject to the
immediately succeeding sentence, the Indemnifying Person shall assume the
defense of any such litigation or proceeding, including the employment of
counsel and the payment of all expenses, with such counsel being designated,
subject to the immediately succeeding sentence, in writing by the
Representatives in the case of parties indemnified pursuant to subsection (b)
and by the Company in the case of parties indemnified pursuant to subsection
(a). Any Indemnified Person shall have the right to participate in such
litigation or proceeding and to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the
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Indemnified Person shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded
parties) include (x) the Indemnifying Person and (y) the Indemnified Person and,
in the written opinion of counsel to such Indemnified Person, representation of
both parties by the same counsel would be inappropriate due to actual or likely
conflicts of interest between them, in either of which cases the reasonable fees
and expenses of counsel (including disbursements) for such Indemnified Person
shall be reimbursed by the Indemnifying Person to the Indemnified Person. If
there is a conflict as described in clause (ii) above, and the Indemnified
Persons have participated in the litigation or proceeding utilizing separate
counsel whose fees and expenses have been reimbursed by the Indemnifying Person
and the Indemnified Persons, or any of them, are found to be solely liable, such
Indemnified Persons shall repay to the Indemnifying Person such fees and
expenses of such separate counsel as the Indemnifying Person shall have
reimbursed. It is understood that the Indemnifying Person shall not, in
connection with any litigation or proceeding or related litigation or
proceedings in the same jurisdiction as to which the Indemnified Persons are
entitled to such separate representation, be liable under this Agreement for the
reasonable fees and out-of-pocket expenses for more than one separate firm
(together with not more than one appropriate local counsel) for all such
Indemnified Persons. Subject to the next paragraph, all such fees and expenses
shall be reimbursed by payment to the Indemnified Persons of such reasonable
fees and expenses of counsel promptly after payment thereof by the Indemnified
Persons.
In furtherance of the requirement above that fees and expenses of any
separate counsel for the Indemnified Persons shall be reasonable, the
Representatives and the Company agree that the Indemnifying Person's obligations
to pay such fees and expenses shall be conditioned upon the following:
(i) in case separate counsel is proposed to be
retained by the Indemnified Persons pursuant to clause (ii) of
the preceding paragraph, the Indemnified Persons shall in good
faith fully consult with the Indemnifying Person in advance as
to the selection of such counsel;
(ii) reimbursable fees and expenses of such separate
counsel shall be detailed and supported in a manner reasonably
acceptable to the Indemnifying Person (but nothing herein
shall be deemed to require the furnishing to the Indemnifying
Person of any information, including without limitation,
computer print-outs of lawyers' daily time entries, to the
extent that, in the judgment of such counsel, furnishing such
information might reasonably be expected to result in a waiver
of any attorney-client privilege); and
(iii) the Company and the Representatives shall
cooperate in monitoring and controlling the fees and expenses
of separate counsel for Indemnified Persons for which the
Indemnifying Person is liable hereunder, and the Indemnified
Person shall use every reasonable effort to cause such
separate counsel to minimize the duplication of activities as
between themselves and counsel to the Indemnifying Person.
The Indemnifying Person shall not be liable for any settlement of any
litigation or proceeding effected without the written consent of the
Indemnifying Person, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees, subject to the
provisions of this Section 8, to indemnify the Indemnified Person from and
against any loss, damage, liability or expenses by reason of such settlement or
judgment. The Indemnifying Person shall not, without the prior written consent
of the Indemnified Persons, effect any settlement of any pending or threatened
litigation, proceeding or claim in respect of which indemnity has been properly
sought by the Indemnified Persons hereunder, unless such settlement includes an
unconditional release by the claimant of all Indemnified Persons from all
liability with respect to claims which are the subject matter of such
litigation, proceeding or claim.
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(d) If the indemnification provided for in this Section 8 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 on the other from the offering of the Units. 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 and such failure resulted in the indemnifying party
being prejudiced in a material way, 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 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 placement fees 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 contributions 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, provided that the provisions of
subsection (c) have been complied with (in all material respects) in respect of
any separate counsel for such indemnified party. Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to contribute any
amount greater than the excess of (i) the total price at which the Units placed
by it and distributed to the public were offered to the public over (ii) 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 in this subsection (d) to contribute are several in proportion to
their respective placement fees and not joint.
(e) The obligations of the Trust and the Company under this
Section 8 shall be in addition to any liability which the Trust and 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
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meaning of the Act; and the obligations of the Agents under this Section 8 shall
be in addition to any liability which the respective Agents may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company, each Administrative Trustee under the Trust Agreement
and to each person, if any, who controls the Trust and the Company within the
meaning of the Act.
9. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Trust and the Company and the several
Agents, 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, the Company, or any officer, director, Administrative
Trustee or controlling person of the Trust or the Company, and shall survive
delivery of and payment for the Units.
10. Termination.
(a) This Agreement may be terminated at any time prior to such
Time of Delivery by the Representatives if, prior to such time, any of the
following events shall have occurred: (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 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 Securities on the terms and in the manner
contemplated in the Prospectus.
(b) If the Representatives elect to terminate this Agreement,
as provided in this Section 10, the Representatives will promptly notify the
Company and each other Underwriter by telephone or telecopy, confirmed by
letter. If this Agreement shall not be carried out by any Underwriter for any
reason permitted hereunder, or if the sale of the Units to the Underwriters as
herein contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company shall not be under any obligation
under this Agreement and shall not be liable to any Underwriter or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement and Underwriters shall be under no liability to
the Company nor be under any liability under this Agreement to one another.
(c) Notwithstanding the foregoing, the provisions of Sections
5 and 8 shall survive any termination of this Agreement.
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11. Notices. All notices hereunder shall, unless otherwise expressly
provided, be in writing and be delivered at or mailed to the following addresses
or be sent by telecopy as follows: if to the Underwriters or the
Representatives, to the Representatives at the address or number, as
appropriate, designated in Schedule I hereto, and, if to the Company, to CMS
Energy Corporation, Fairlane Plaza South, Suite 1100, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and Chief Financial Officer.
12. Parties in Interest. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Trust, the Company and, to
the extent provided in Sections 8 and 9 hereof, the officers, directors and
administrative trustees of the Trust, the Company and each person who controls
the Trust, 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. No purchaser of
any of the Units from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of this
Agreement.
14. Definition of Certain Terms. The term "Underwriters," as used
herein, shall be deemed to mean the several persons, firms or corporations,
named in Schedule II hereto (including the Representatives herein mentioned, if
so named), and the term "Representatives," as used herein, shall be deemed to
mean the Representatives or Representatives designated by, or in the manner
authorized by, the Underwriters in Schedule I hereto. All obligations of the
Underwriters hereunder are several and not joint. If there shall be only one
person, firm or corporation named in Schedule I and Schedule II hereto, the term
"Underwriters" and the term "Representatives," as used herein, shall mean such
person, firm or corporation. If the firm or firms listed in Schedule I hereto
are the same as the firm or firms listed in Schedule II hereto, then the terms
"Underwriters" and "Representatives," as used herein, shall each be deemed to
refer to such firm or firms. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Units from any
of the respective Underwriters.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This 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.
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Trust, the Company, each of the Underwriters and
each of the Representatives plus one for each counsel counterparts hereof.
Very truly yours,
CMS ENERGY TRUST II
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Administrative Trustee
CMS ENERGY CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY, INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
As Representatives of the several
Underwriters named in Schedule II hereto
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
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SCHEDULE I
REPRESENTATIVES
SOLOMON ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇▇▇ LUFKIN& ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN:
TELEPHONE:
FACSIMILE:
33
SCHEDULE II
NUMBER OF OPTIONAL
NUMBER OF FIRM UNITS TO BE PURCHASED IF
UNDERWRITERS UNITS TO BE PURCHASED MAXIMUM OPTION EXERCISED
------------ --------------------- ------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 3,443,750 516,562.5
▇▇▇▇▇▇▇▇▇ Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation 3,443,750 516,562.5
Banc of America Securities LLC 362,500 54,375
========= =========
Total.............. 7,250,000 1,087,500
