CMS ENERGY
CORPORATION
$150,000,000 5.50% Convertible Senior Notes due 2029
Underwriting
Agreement
June 9, 2009
To the Representatives named in Schedule I
hereto
of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
CMS Energy Corporation, a Michigan
corporation (the “ Company ”), proposes to issue
and sell to the several Underwriters (as defined in Section 12
hereof) an aggregate of $150,000,000 in principal amount of its
5.50% Convertible Senior Notes due 2029 (the “ Initial
Securities ”), subject to the terms and conditions set
forth herein. The Underwriters have designated the Representatives
(as defined in Section 12 hereof) to execute this Agreement on
their behalf and to act for them in the manner provided in this
Agreement. The Initial Securities are to be issued pursuant to the
provisions of the Indenture dated as of September 15, 1992
between the Company and The Bank of New York Mellon (ultimate
successor to NBD Bank, National Association), as trustee (the
“ Trustee ”), as supplemented and amended by
various supplemental indentures and as to be supplemented by the
Twenty-Second Supplemental Indenture, to be dated as of
June 15, 2009 (the “ Supplemental Indenture
”), establishing the terms of the Securities (as defined
below) (as so supplemented, the “ Indenture
”).
The Company has agreed to grant to
the Underwriters, severally and not jointly, an option (the “
Option ”) to purchase all or any part of $22,500,000
principal amount of additional 5.50% Convertible Senior Notes due
2029 (the “ Option Securities ”), at a price per
Option Security equal to the purchase price paid by the
Underwriters per Initial Security solely to cover over-allotments
that may be made in connection with the offering and distribution
of Initial Securities. The Option shall expire 30 days after
the Time of Purchase (as defined in Section 2 hereof) and may
be exercised in whole or in part from time to time. The Option may
be exercised upon notice by the Representatives to the Company
setting forth the aggregate principal amount of Option Securities
as to which the several Underwriters are then exercising the Option
and the time, date and place of payment and delivery for such
Option Securities. Any such time, date and place of payment and
delivery shall be determined by the Representatives, but shall not
be later than seven full business days after the exercise of said
Option, nor, in any event, prior to the Time of Purchase or, after
the Time of Purchase, not earlier than three full business days
after the exercise of said Option, unless otherwise agreed upon by
the Representatives and the Company. Any such time and date of
payment and delivery that falls after the Time of Purchase is
referred to herein as a “ Date of Option Delivery
”. If the Option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, severally and not
jointly, agrees to purchase that proportion of the aggregate
principal amount of Option Securities then being purchased that the
aggregate principal amount of Initial Securities each such
Underwriter has severally agreed to purchase as set forth in
Schedule II hereto bears to the aggregate principal
amount of Initial Securities, subject to such adjustments as the
Representatives in their discretion shall make to eliminate any
sales or purchases of an incremental principal amount of Option
Securities less than $1,000. As used herein, the term “
Securities ” shall include the Initial Securities and
all or any portion of any Option Securities.
The Company has prepared and filed
with the Securities and Exchange Commission (the “
Commission ”), in accordance with the provisions of
the Securities Act of 1933, as amended (the “ Act
”), a registration statement on Form S-3 (Registration
No. 333-153353), including a prospectus relating to the
Securities, and such registration statement has become effective
under the Act. The registration statement, at the time it became
effective or, if any post-effective amendment thereto has been
filed with the Commission, at the time the most recent
post-effective amendment thereto became effective, and as it may
have been thereafter amended to the date of this Agreement
(including the documents then incorporated by reference therein),
is herein referred to as the “ Registration Statement
”. The Registration Statement at the time it originally
became effective is referred to hereinafter as the “
Original Registration Statement ”. If the Company has
filed, or will file, an abbreviated registration statement to
register additional Securities pursuant to Rule 462(b) under the
Act (the “ Rule 462(b) Registration Statement
”), then any reference herein to the term “
Registration Statement ” shall be deemed to include
such Rule 462(b) Registration Statement. The prospectus forming a
part of the Registration Statement at the time the Registration
Statement became effective (including the documents then
incorporated by reference therein) is herein referred to as the
“ Basic Prospectus ”; provided , that, in
the event that the Basic Prospectus shall have been amended or
revised prior to the execution of this Agreement, or if the Company
shall have supplemented the Basic Prospectus by filing any
documents pursuant to Section 13, 14 or 15 of the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), after the time the Registration Statement became
effective and prior to the execution of this Agreement, which
documents are deemed to be incorporated in the Basic Prospectus,
the term “ Basic Prospectus ” shall also mean
such prospectus as so amended, revised or supplemented. The Basic
Prospectus, as amended and supplemented immediately prior to the
time when sales of the Securities were first made or such other
time as agreed by the Company and the Representatives (the “
Time of Sale ”), is hereinafter referred to, together
with any issuer free writing prospectus (as defined in
Rule 433 under the Act) relating to the Securities (each, an
“ Issuer Free Writing Prospectus ”) and other
documents listed in Schedule III hereto, as the “
Time of Sale Prospectus ”. The Basic Prospectus, as
amended and supplemented immediately prior to the Time of Sale, is
hereinafter referred to as the “ Preliminary
Prospectus ”. The Basic Prospectus, as it shall be
revised or supplemented to reflect the final terms of the offering
and sale of the Securities by a prospectus supplement relating to
the Securities, and in the form to be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter referred to
as the “ Prospectus ”. Any reference herein to
the terms “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, the Preliminary Prospectus, the Time of Sale Prospectus
or the Prospectus shall be deemed to include amendments or
supplements to the Registration Statement, the Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus, as the
case may be, including any post-effective amendment to the
Registration Statement and any prospectus supplement forming a part
of the Prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act, and documents
incorporated by reference therein or deemed to be a part of and
included therein, after the date of this Agreement and prior to the
termination of the offering of the Securities by the
Underwriters.
1. Purchase and Sale .
Upon the basis of the representations, warranties and covenants and
subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the respective Underwriters, severally
and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, at the purchase price
specified in Schedule II hereto (the “
Purchase Price ”), the respective principal amounts of
Initial Securities set opposite their names in
Schedule II hereto and the respective principal amounts
of Option Securities determined as set forth above if and to the
extent the Option is exercised by the Representatives. The
Underwriters will offer the Initial Securities to purchasers
initially at a price equal to 100% of the principal amount thereof.
Such price may be changed at any time without notice.
2. Payment and Delivery
. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters,
through the facilities of The Depository Trust Company (“
DTC ”), certificates for the Initial Securities at the
Time of Purchase, against the irrevocable release of a wire
transfer of immediately available funds to the order of the Company
for the amount of the Purchase Price therefor plus accrued
interest, if any, to the Time of Purchase, with any transfer taxes
payable in connection with such delivery of Initial Securities duly
paid by the Company. The certificates for the Securities shall be
definitive global certificates in book-entry form for clearance
through DTC. Delivery of certificates for the Initial Securities
shall be made at the offices of Pillsbury Winthrop Shaw Pittman LLP
(“ Pillsbury ”), 1540 Broadway, New York, New
York 10036-4039 (or such other place or places of delivery as shall
be agreed upon by the Company and the Representatives) at
10:00 a.m., New York City time, on June 15, 2009 (or such
other time and date as the Company and the Representatives shall
agree), unless postponed in accordance with the provisions of
Section 8 hereof. The day and time at which payment and
delivery for the Securities (without regard to any Option
Securities) are to be made is herein called the “ Time of
Purchase ”. In addition, in the event that the
Underwriters have exercised their Option to purchase any or all of
the Option Securities, payment of the purchase price for, and
delivery of, such Option Securities shall be made on the relevant
Date of Option Delivery as specified in the notice from the
Representatives to the Company at the place described above or at
such other place as shall be agreed upon by the Representatives and
the Company.
3. Conditions of
Underwriters’ Obligations . The several obligations of
the Underwriters hereunder are subject to the accuracy of the
representations and warranties and other statements of the Company
made herein at the Time of Sale and at and as of the Time of
Purchase and, solely with respect to any Option Securities, any
Date of Option Delivery on the part of the Company, to the
performance by the Company of all of its obligations hereunder
theretofore to be performed and to the following other conditions,
as applicable.
(a) That all legal proceedings
to be taken in connection with the issue and sale of the Securities
shall be reasonably satisfactory in form and substance to
Pillsbury, counsel to the Underwriters.
(b) That, at the Time of
Purchase, the Underwriters shall be furnished with the following
opinions and letter, as the case may be, dated the day of the Time
of Purchase:
(i) opinion of Shelley J. Ruckman, Esq., Assistant General
Counsel of Consumers Energy Company, as special counsel to the
Company, substantially to the effect set forth in
Exhibit A attached hereto;
(ii) letter of Sidley Austin LLP, special counsel to the
Company, substantially to the effect set forth in
Exhibit B attached hereto; and
(iii) opinion of Pillsbury, counsel to the Underwriters, as to
such matters relating to the Securities and the transactions
contemplated hereby as the Underwriters may reasonably request.
(c) That, on the date hereof
and on the date of the Time of Purchase, the Representatives shall
have received a letter from PricewaterhouseCoopers LLP in form and
substance satisfactory to the Underwriters, dated such date,
(i) confirming that they are an independent registered public
accounting firm with respect to the Company within the meaning of
the Act, the applicable published rules and regulations of the
Commission thereunder and the applicable published rules and
regulations of the Public Company Accounting Oversight Board,
(ii) stating that in their opinion the financial statements
examined by them and incorporated by reference in the Preliminary
Prospectus and the Prospectus complied as to form in all material
respects with the applicable accounting requirements of the
Commission, including the applicable published rules and
regulations of the Commission, and (iii) covering, as of a
date not more than five days prior to the date of each such letter,
such other matters as the Underwriters reasonably request.
(d) That, subsequent to the
Time of Sale or, if earlier, the dates as of which information is
given in the Time of Sale Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been (i) any change
specified in the letter or letters referred to in Section 3(c)
hereof or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries taken as a whole, except as referred
to in or contemplated in the Time of Sale Prospectus (exclusive of
any such amendment or supplement thereto), the effect of which, in
any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated in the Time of Sale
Prospectus (exclusive of any such amendment or supplement
thereto).
(e) That 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 the Company shall not have received from the Commission any
notice pursuant to Rule 401(g)(2) under the Act objecting to
the use of the automatic shelf registration statement form.
(f) That, at the Time of
Purchase, the Company shall have delivered to the Representatives a
certificate of an executive officer of the Company to the effect
that, to the best of his or her knowledge, information and belief,
(i) there shall have been no material adverse change in the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries taken as a whole
from that set forth in the Time of Sale Prospectus (other than
changes referred to in or contemplated by the Time of Sale
Prospectus) and (ii) the representations and warranties of the
Company in this Agreement are true and correct on and as of the
Time of Purchase with the same effect as if made at the Time of
Purchase, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Time of Purchase.
(g) That the Company shall have
furnished the Representatives signed counterparts of the
Supplemental Indenture.
(h) That the Company shall have
performed such of its obligations under this Agreement as are to be
performed at or before the Time of Purchase by the terms
hereof.
(i) That the Company shall have
complied with the provisions of Section 4(e) hereof with respect to
the furnishing of the Time of Sale Prospectus and the
Prospectus.
(j) That, at the Time of
Purchase, the Initial Securities shall be rated at least BB+ by
Standard & Poor’s Ratings Group, a division of The
McGraw-Hill Companies, Inc. (“ S&P ”), Ba1
by Moody’s Investors Service, Inc. (“
Moody’s ”) and BB+ by Fitch, Inc. (“
Fitch ”), and the Company shall have delivered to the
Representatives a letter, dated on or prior to the Time of
Purchase, from each such rating agency, or other evidence
reasonably satisfactory to the Representatives, confirming that the
Initial Securities have been assigned such ratings; and, between
the date hereof and the Time of Purchase, there shall have been no
downgrading or withdrawal of any investment ratings of the Initial
Securities, securities of Consumers Energy Company or other
securities of the Company by any nationally recognized statistical
rating agency (as such term is defined for purposes of
Rule 436(g)(2) under the Act), and no such rating agency shall
have publicly announced that it has under surveillance or review,
with possible negative implications, any such rating.
(k) That any filing of the
Preliminary Prospectus and the Prospectus and any supplements
thereto required pursuant to Rule 424 under the Act shall have
been made in compliance with and in the time periods provided by
Rule 424 under the Act and that the Final Term Sheet (as
defined in Section 4(v) hereof) and any other material required to
be filed by the Company pursuant to Rule 433(d) under the Act shall
have been filed with the Commission within the applicable time
period prescribed for such filing by Rule 164 and
Rule 433 under the Act.
(l) That, at the Time of
Purchase, the Initial Securities shall be eligible for clearance
and settlement through DTC.
(m) That the Company shall have
paid the applicable filing fees to the Commission relating to the
Securities within the time required by Rule 456(b)(1) under
the Act (without regard to the proviso thereof).
(n) That the Company’s
shares of common stock, par value $0.01 per share (the “
Common Stock ”), issuable upon conversion of the
Securities (the “ Issuable Common Stock ”), at
the Time of Purchase, shall have been duly listed, subject only to
official notice of issuance, on the New York Stock Exchange
(“ NYSE ”).
(o) That, at the Time of
Purchase, the Company shall have furnished to the Representatives a
letter substantially in the form of Exhibit C attached
hereto addressed to the Representatives from each person listed in
Schedule IV hereto.
(p) That, in the event that the
Underwriters exercise their Option to purchase all or any portion
of the Option Securities and the Date of Option Delivery is not the
day of the Time of Purchase, the representations and warranties of
the Company contained herein and the statements in any certificates
furnished by the Company hereunder shall be true and correct as of
each Date of Option Delivery, and, at the relevant Date of Option
Delivery, the Representatives shall receive:
(i) a certificate, dated such Date of Option Delivery, of an
executive officer of the Company confirming that the certificate
delivered at the Time of Purchase pursuant to Section 3(f) hereof
remains true and correct as of such Date of Option Delivery;
(ii) opinions or a letter, as the case may be, of Shelley J.
Ruckman, Esq., Assistant General Counsel of Consumers Energy
Company, as special counsel to the Company, Sidley Austin LLP,
special counsel to the Company, and Pillsbury, counsel to the
Underwriters, dated as of such Date of Option Delivery, relating to
the Option Securities and otherwise to the same effect as the
opinions and letter required by Section 3(b) hereof; and
(iii) a letter from PricewaterhouseCoopers LLP, dated such
Date of Option Delivery, substantially in the same form and
substance as the letters furnished to the Representatives pursuant
to Section 3(c) hereof, except that the date specified in
Section 3(c)(iii) hereof shall be a date not more than five
days prior to such Date of Option Delivery.
(q) That any additional
documents or agreements reasonably requested by the Underwriters or
their counsel to permit the Underwriters to perform their
obligations or permit their counsel to deliver opinions hereunder
shall have been provided to them.
4. Certain Covenants of the
Company . In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as
follows.
(a) To promptly transmit copies
of the Preliminary Prospectus and the Prospectus, and any
amendments or supplements thereto, to the Commission for filing
pursuant to Rule 424 under the Act.
(b) During the period when a
prospectus relating to any of the Securities (or, in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required to
be delivered under the Act by any Underwriter or any dealer, to
file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act; to promptly file all material required to be
filed by the Company with the Commission pursuant to Rule 433(d)
under the Act; and to promptly notify the Underwriters of any
written notice given to the Company by any of the rating agencies
referred to in Section 3(j) hereof of any intended downgrade in or
withdrawal of any rating of any securities of the Company or
Consumers Energy Company or of any other intended change in any
such rating that does not indicate the direction of the possible
change of such rating.
(c) To deliver to each of the
Representatives a conformed copy of the Registration Statement and
any amendments thereto (including all exhibits thereto) and full
and complete sets of all comments, if any, of the Commission or its
staff and all responses thereto with respect to the Registration
Statement and any amendments thereto and to furnish to the
Representatives, for each of the Underwriters, conformed copies of
the Registration Statement and any amendments thereto without
exhibits.
(d) As soon as the Company is
advised thereof, to advise the Representatives and confirm the
advice in writing of: (i) the effectiveness of any amendment
to the Registration Statement (and the Company agrees to use its
best efforts to cause any post-effective amendments to the
Registration Statement to become effective as promptly as
possible); (ii) any request made by the Commission for
amendments to the Registration Statement, Time of Sale Prospectus
or Prospectus or for additional information with respect thereto;
(iii) the suspension of qualification or suspension of
exemption from qualification of the Securities for offering or sale
under blue sky or state securities laws or the initiation or threat
or any proceedings for that purpose; and (iv) the entry of a
stop order suspending the effectiveness of the Registration
Statement or the initiation or threat of any proceedings for that
purpose (and the Company agrees to use every reasonable effort to
prevent the issuance of any such suspension or stop order and, if
such a suspension or stop order should be entered, to use every
reasonable effort to obtain the lifting or removal thereof at the
earliest possible time).
(e) To deliver to the
Underwriters, without charge, as soon as practicable, and from time
to time during such period of time after the date of the
Preliminary Prospectus or the Prospectus, as the case may be, as
they are required by law to deliver a prospectus (or, in lieu
thereof, the notice referred to in Rule 173(a) under the Act), as
many copies of the Preliminary Prospectus, the Prospectus or any
other Issuer Free Writing Prospectus, as the case may be (as
supplemented or amended if the Company shall have made any
supplements or amendments thereto), as the Representatives may
reasonably request; and, in case any Underwriter is required to
deliver a prospectus (or, in lieu thereof, the notice referred to
in Rule 173(a) under the Act) after the expiration of nine months
after the date of the Preliminary Prospectus or the Prospectus, as
the case may be, to furnish to the Representatives, upon request,
at the expense of such Underwriter, a reasonable quantity of a
supplemental prospectus or of supplements to the Preliminary
Prospectus or the Prospectus, as the case may be, complying with
Section 10(a)(3) of the Act.
(f) For such period of time as
the Underwriters are required by law or customary practice to
deliver a prospectus in respect of the Securities (or, in lieu
thereof, the notice referred to in Rule 173(a) under the Act), if
any event shall have occurred as a result of which it is necessary
to amend or supplement the Time of Sale Prospectus or the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Time of Sale Prospectus or the
Prospectus (or, in lieu thereof, the notice referred to in Rule
173(a) under the Act), as the case may be, is delivered to a
purchaser, not misleading, or if it becomes necessary to amend or
supplement the Registration Statement or amend the Time of Sale
Prospectus or the Prospectus to comply with law, including in
connection with the use or delivery of the Prospectus, to forthwith
prepare and file with the Commission (subject to Section 4(m)
hereof) an appropriate amendment or supplement to the Registration
Statement, the Time of Sale Prospectus or the Prospectus, as the
case may be, and deliver to the Underwriters, without charge, such
number of copies thereof as may be reasonably requested, and use
its best efforts to have any necessary amendment to the
Registration Statement declared effective as soon as practicable to
avoid any disruption in use of the Prospectus.
(g) During the period when a
prospectus relating to any of the Securities (or, in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required to
be delivered under the Act by any Underwriter or any dealer, to
comply, at the Company’s own expense, with all requirements
imposed on the Company by the Act, as now and hereafter amended,
and by the rules and regulations of the Commission thereunder, as
from time to time in force, so far as necessary to permit the
continuance of sales of or dealing in the Securities during such
period in accordance with the provisions hereof and as contemplated
by the Time of Sale Prospectus.
(h) If required by
Rule 430B(h) under the Act, to prepare a form of prospectus in
a form approved by the Representatives and to file such form of
prospectus pursuant to Rule 424(b) under the Act not later than may
be required by Rule 424(b) under the Act and to make no further
amendment or supplement to such form of prospectus that shall be
reasonably objected to by the Representatives promptly after
reasonable notice thereof.
(i) To make generally available
to the Company’s security holders, as soon as practicable, an
“earning statement” (which need not be audited by
independent public accountants) covering a 12-month period
commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, that shall
comply in all material respects with and satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(j) To use its best efforts to
qualify the Securities for offer and sale under the securities or
blue sky laws of such jurisdictions as the Representatives may
designate and to pay (or cause to be paid), or reimburse (or cause
to be reimbursed) the Underwriters and their counsel for,
reasonable filing fees and expenses in connection therewith
(including the reasonable fees and disbursements of counsel to the
Underwriters 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, file a general
consent to service of process, file annual reports or comply with
any other requirements deemed by the Company to be unduly
burdensome.
(k) To pay all expenses, fees
and taxes (other than transfer taxes on sales by the respective
Underwriters) in connection with the issuance and delivery of the
Securities and the Issuable Common Stock, including, without
limitation, (i) the fees and expenses of the Company’s
counsel and independent accountants, (ii) the cost of
preparing any certificates representing the Securities,
(iii) the costs and charges of any transfer agent and any
registrar, (iv) the cost of printing and delivery (electronic
or otherwise) to the Underwriters of copies of any Permitted Free
Writing Prospectus (as defined in Section 6(a) hereof),
(v) all expenses incurred by the Company in connection with
any “road show” presentation to potential investors,
(vi) all expenses and application fees related to the listing
of the Issuable Common Stock on the NYSE and (vii) any costs
and expenses associated with the reforming of any contracts for any
sale of the Securities made by any Underwriter caused by a breach
of the representations and warranties contained in the third or
fourth sentence of Section 5(a) hereof, except that the Company
shall be required to pay the fees and disbursements (other than
fees and disbursements referred to in Section 4(j) hereof) of
Pillsbury, counsel to the Underwriters, only in the events provided
in Section 4(l) hereof, the Underwriters hereby agreeing to pay
such fees and disbursements in any other event, and that, except as
provided in Section 4(l) hereof, the Company shall not be
responsible for any out-of-pocket expenses of the Underwriters in
connection with their services hereunder.
(l) If the Underwriters shall
not take up and pay for the Securities (i) due to the failure
of the Company to comply with any of the conditions specified in
Section 3 hereof, to pay the reasonable fees and disbursements
of Pillsbury, counsel to the Underwriters, and to reimburse the
Underwriters for their other reasonable out-of-pocket expenses not
to exceed a total of $75,000, incurred in connection with the
financing contemplated by this Agreement, such amounts including
all amounts incurred in connection with any roadshow, provided that
such amounts are documented in writing to the Company, or
(ii) due to termination in accordance with the provisions of
Section 9 hereof prior to the Time of Purchase, to pay the
reasonable fees and disbursements of Pillsbury, counsel to the
Underwriters.
(m) Prior to the termination of
the offering of the Securities, to not amend or supplement the
Registration Statement, Time of Sale Prospectus or Prospectus
(including the Basic Prospectus) unless the Company has furnished
the Representatives and counsel to the Underwriters with a copy for
their review and comment a reasonable time prior to filing and has
reasonably considered any comments of the Representatives, and not
to make any such amendment or supplement to which such counsel
shall reasonably object on legal grounds in writing after
consultation with the Representatives.
(n) To furnish the
Representatives with copies of all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act subsequent to the time the Registration Statement
becomes effective and prior to the termination of the offering of
the Securities.
(o) So long as may be required
by law for distribution of the Securities by the Underwriters or by
any dealers that participate in the distribution thereof, to comply
with all requirements under the Exchange Act relating to the timely
filing with the Commission of its reports pursuant to
Section 13 or 15(d) of the Exchange Act and of its proxy
statements pursuant to Section 14 of the Exchange Act.
(p) (i) Without the prior
written consent of the Representatives, not to offer, sell,
contract to sell or otherwise issue debt securities substantially
similar to the Initial Securities for a period from the date hereof
until the Time of Purchase and (ii) to not, directly or
indirectly, for a period of 60 days following the date hereof,
without the prior written consent of the Representatives: offer,
pledge, sell or contract to sell any Common Stock (or any
securities convertible into, exercisable for or exchangeable for
any Common Stock (each, a “ Common Stock Security
”)); sell any option or contract to purchase any Common Stock
(or any Common Stock Security); purchase any option or contract to
sell any Common Stock (or any Common Stock Security); grant any
option, right or warrant to sell any Common Stock (or any Common
Stock Security); lend or otherwise dispose of or transfer any
Common Stock (or any Common Stock Security); file a registration
statement related to the Common Stock (or any Common Stock
Security); or enter into any swap or other agreement or transaction
that transfers, in whole or in part, the economic consequence of
ownership of Common Stock (or any Common Stock Security), whether
any such swap or transaction is to be settled by delivery of Common
Stock, in cash or otherwise; provided , however ,
that the Company may (i) issue shares of its Common Stock upon
conversion or settlement of any warrants outstanding, the
Company’s 4.50% Cumulative Convertible Preferred Stock, the
Company’s 7.75% Convertible Trust Preferred Securities, the
Company’s 3.375% Convertible Senior Notes Due 2023 or the
Company’s 2.875% Convertible Senior Notes Due 2024 in
accordance with their respective terms, (ii) issue shares of
Common Stock and/or Common Stock Securities in connection with or
under any existing continuous equity program, stock purchase plan,
performance incentive stock plan, employee stock ownership plan,
employee savings and incentive plan (each an “ Employee
Benefit Plan ”) and any charitable foundation donation
and (iii) file a registration statement on Form S-8 to
register Common Stock and/or Common Stock Securities in connection
with any Employee Benefit Plan.
(q) To not take, directly or
indirectly, any action designed to, or that has constituted or that
might reasonably be expected to, cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Securities.
(r) To cause the proceeds of
the issuance and sale of the Securities to be applied for the
purposes described in the Time of Sale Prospectus and the
Prospectus.
(s) To obtain the approval of
DTC for “book-entry” transfer of the Securities, and to
comply in all material respects with all of its agreements set
forth in the representation letter or letters of the Company to DTC
relating to the approval of the Securities by DTC for
“book-entry” transfer.
(t) To not voluntarily claim,
and actively resist any attempts to claim, the benefit of any usury
laws against the holders of any Securities.
(u) To take all reasonable
action necessary to enable S&P, Moody’s and Fitch to
provide their respective credit ratings of the Securities.
(v) That any Underwriter may
distribute to investors a free writing prospectus (as defined in
Rule 405 under the Act) that contains the final terms of the
Securities in the form set forth in Annex A to
Schedule III hereto (the “ Final Term
Sheet ”), and to file such free writing prospectus in
accordance with Rule 433(d) under the Act.
(w) (i) To use its best
efforts to effect the listing of the Issuable Common Stock, prior
to the Time of Purchase, on the NYSE, subject only to official
notice of issuance, (ii) to reserve and keep available at all
times, free of preemptive rights, the full number of shares of
Issuable Common Stock and (iii) between the date hereof and
the Time of Purchase, to not do or authorize any act or thing that
would result in an adjustment of the conversion price of the
Securities.
(x) If the third anniversary of
the initial effective date of the Registration Statement occurs
before all of the Securities have been sold by the Underwriters,
prior to such third anniversary, to file a new shelf registration
statement and to take any other action necessary to permit the
public offering of the Securities to continue without interruption;
references in this Section 4(x) to the Registration Statement shall
include such new registration statement declared effective by the
Commission or otherwise deemed to have become effective upon
filing.
(y) If, at any time when
Securities remain unsold by the Underwriters, the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) under
the Act or otherwise ceases to be eligible to use the automatic
shelf registration statement form, to (i) promptly notify the
Representatives thereof, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating
to the Securities, in a form reasonably satisfactory to the
Representatives, (iii) use its reasonable best efforts to
cause such registration statement or post-effective amendment to be
declared effective and (iv) promptly notify the
Representatives of such effectiveness.
5. Representations and
Warranties of the Company . The Company represents and warrants
to, and agrees with, each of the Underwriters as of the Time of
Sale, the Time of Purchase and any Date of Option Delivery as
follows.
(a) The Company meets the
requirements for the use of Form S-3 under the Act; the
Registration Statement has been declared effective by the
Commission under the Act, meets the requirements set forth in
paragraph (a)(1)(ix) or (a)(1)(x) of Rule 415 under the Act
and complies in all other respects with Rule 415 under the
Act; a true and correct copy of the Registration Statement as
amended to the date hereof has been delivered to each of the
Representatives and to the Representatives for each of the other
Underwriters (except that copies delivered for the other
Underwriters excluded exhibits to such Registration Statement); any
filing of the Preliminary Prospectus pursuant to Rule 424
under the Act has been made, and any filing of the Prospectus and
any supplements thereto required pursuant to Rule 424 under
the Act will be made in the manner and within the time period
required by Rule 424 under the Act; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
has been issued under the Act and no proceedings for such purposes
have been instituted or, to the knowledge of the Company,
threatened or are pending before the Commission, and any request on
the part of the Commission for additional information has been
complied with by the Company; and no order preventing or suspending
the use of any Issuer Free Writing Prospectus has been issued by
the Commission. (1) At the respective times that the
Registration Statement and each amendment thereto became effective
and at the Time of Sale (which the Representatives have informed
the Company is a time that is the earlier of (x) the date on
which the Prospectus was first used and (y) the date and time
of the first contract of sale of the Initial Securities) (the
“ Applicable Effective Time ”), the Registration
Statement and the Basic Prospectus complied, (2) at the Time
of Sale the Time of Sale Prospectus complied, and (3) on its
issue date the Prospectus will comply, in each case in all material
respects with the applicable provisions of the Act and the related
rules and regulations of the Commission. (A) At the respective
times that the Registration Statement and each amendment thereto
became effective and at the Applicable Effective Time, the
Registration Statement did not contain any 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, (B) the Basic Prospectus, as of its issue date,
did not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, (C) the Time of Sale Prospectus, as of
the Time of Sale, does not include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (D) the
Prospectus, on its issue date and, as amended or supplemented, if
applicable, as of the Time of Purchase and any Date of Option
Delivery, will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except in each case that the
Company makes no representation or warranty to any Underwriter with
respect to any statements or omissions made therein in reliance
upon and in conformity with information furnished in writing to the
Company through the Representatives on behalf of any Underwriter
expressly for use therein (as set forth in Section 7(b) hereof).
Each document listed in Schedule III hereto, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Securities or until any earlier
date that the Company notified or notifies the Representatives, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus.
(b) The documents incorporated
by reference in the Registration Statement, the Basic Prospectus,
the Time of Sale Prospectus and the Prospectus, when they were
filed with the Commission (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 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; and none of such documents, when it was
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 the 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 the light of the
circumstances under which they are made, not misleading. No such
documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date hereof other than as expressly set
forth in the Prospectus. The Company has given the Representatives
notice of any filings made within 48 hours prior to the Time of
Sale pursuant to the Exchange Act and the rules and regulations of
the Commission promulgated thereunder.
(c) 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 Time of Sale Prospectus and 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 Time of Sale Prospectus and 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 (a “ Material Adverse
Effect ”).
(d) 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 and in good standing
under the laws of the jurisdiction of its organization, has all
requisite authority to own or lease its properties and conduct its
business as described in the Time of Sale Prospectus and 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 Time of Sale Prospectus and 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.
(e) The Securities are in the
form contemplated by the Indenture and have been duly authorized by
the Company. At (i) the Time of Purchase, the Initial
Securities, and (ii) at any Date of Option Delivery, any
Option Securities being sold, will have been duly executed and
delivered by the Company and, when authenticated by the Trustee in
the manner provided for in the Indenture and delivered against
payment therefor as provided in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by 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 will be entitled to the
benefits afforded by the Indenture equally and ratably with all
securities outstanding thereunder, and will be convertible into
Common Stock in accordance with the terms of the Indenture. Each of
the Securities and the Issuable Common Stock will conform in all
material respects to the descriptions thereof in the Time of Sale
Prospectus and the Prospectus and such descriptions conform in all
material respects to the rights set forth in the instruments
defining the same. The Company knows of no reason that any holder
of the Securities would be subject to personal liability solely by
reason of being such a holder; and the issuance of the Securities
is not subject to any preemptive or other similar rights of any
securityholder of the Company or any of its subsidiaries.
(f) The Indenture has been duly
authorized by the Company. At the Time of Purchase, the Indenture
will have been duly executed and delivered by the Company and will
constitute 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
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 Indenture
conforms in all material respects to the descriptions thereof in
the Time of Sale Prospectus and the Prospectus; and the Indenture
conforms to the requirements of the Trust Indent
