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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) MARCH 14, 1995
MCN CORPORATION
(Exact name of registrant as specified in its charter)
MICHIGAN 1-10070 38-2820658
State of Incorporation (Commission File (I.R.S. Employer
Number) Identification No.)
500 GRISWOLD STREET, DETROIT, MICHIGAN 48226
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(313) 256-5500
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ITEM 5. OTHER EVENTS
The registrant is filing herewith the following exhibit in connection
with the offering by the registrant of its Common Stock (par value $.01 per
share), pursuant to the registration statement of the registrant and MCN
Michigan Limited Partnership on Form S-3, as amended, (No. 33-55665) filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
described in the Prospectus Supplement to Prospectus dated October 18, 1994
(the "Prospectus Supplement") dated March 14, 1995 filed with the Securities
and Exchange Commission pursuant to Rule 424(b)(5) under the Securities Act of
1933:
INDEX TO EXHIBITS
Exhibit Exhibit
Number
1-1 Form of Purchase Agreement
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MCN CORPORATION
By /s/ Sebastian Coppola
----------------------------
Sebastian Coppola
Vice President and Treasurer
Date: March 15, 1995
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5,000,000 SHARES
MCN CORPORATION
(A MICHIGAN CORPORATION)
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
PURCHASE AGREEMENT
March 14, 1995
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
as the Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
MCN Corporation, a Michigan corporation (the "Company") confirms its
agreement with each of the Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10), for whom
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Smith
Barney Inc., Dean Witter Reynolds Inc., Donaldson, Lufkin & Jenrette Securities
Corporation and A.G. Edwards & Sons, Inc. are acting as the representatives (in
such capacity, such firms shall hereinafter be referred to as the
"Representatives"), with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of the respective numbers
of shares of Common Stock, par value $.01 per share, of the Company (the
"Common Stock") set forth opposite their names on Schedule A hereto, except as
may otherwise be provided in the Pricing Agreement, as hereinafter defined.
The shares of Common Stock to be purchased by the Underwriters are hereinafter
referred to as the "Securities".
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Prior to the purchase and public offering of the Securities by the
Underwriters, the Company and the Representatives, acting on behalf of the
several Underwriters, shall enter into an agreement substantially in the form
of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may take
the form of an exchange of any standard form of written telecommunication
between the Company and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the
Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-55665), including a
prospectus relating to the registration of the Securities under the Securities
Act of 1933, as amended (the "1933 Act") and such registration statement has
been declared effective by the Commission. Such registration statement and
prospectus have been amended and supplemented prior to the date of this
Agreement, any such amendment and supplement were so prepared and filed with
the Commission, and any such amendment has become effective. A prospectus
supplement (the "Prospectus Supplement") relating to the Securities has been so
prepared and will be filed with the Commission pursuant to Rule 424 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement, including all exhibits thereto,
which shall be deemed to include all information omitted therefrom, if any, in
reliance upon Rule 430A of the 1933 Act Regulations and contained in a final
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, as amended and supplemented to the date of this Agreement is
referred to herein as the "Registration Statement". The prospectus, as amended
and supplemented (including the Prospectus Supplement) in the form in which it
has most recently been filed with the Commission on or after the date of this
Agreement is referred to herein as the "Prospectus", except that if any revised
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
Prospectus on file with the Commission at the time the Registration became
effective (whether or not such revised prospectus is required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. Any reference herein to
the Registration Statement and the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein as of the date of such
Registration Statement or Prospectus, as the case may be. All references in
this Agreement to financial statements and schedules and other information
which is "contained," "included" or "stated" in the Registration
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Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; all references in
this Agreement to any amendment or supplement to the Registration Statement or
the Prospectus shall be deemed to mean and include without limitation the
filing of any document under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") which is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all
references to the Prospectus as amended or supplemented in relation to the
Securities sold pursuant to this Agreement, in the form filed with the
Commission pursuant to Rule 424 of the 1933 Act Regulations, shall mean and
include any documents incorporated by reference therein as of the date of such
filing.
The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as the Representatives deem
advisable after the Pricing Agreement has been executed and delivered.
SECTION 1. Representations and Warranties. (a) The Company
represents and warrants to, and agrees with, each of the Underwriters as of the
date hereof and as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") as follows:
(i) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by the Company.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission.
(iii) The Registration Statement and the Prospectus comply,
and any amendments or supplements thereto will comply, in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and do not and will not, as of the applicable effective
date in the case of the Registration Statement and any amendment
thereto and as of the applicable filing date in the case of the
Prospectus and any supplement thereto, include an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading; provided, however, that
the representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter
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through the Representatives expressly for use in the Registration
Statement or Prospectus.
(iv) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or the Prospectus, at the
time they were or hereafter are filed with the Commission or amended,
as the case may be, complied and will comply in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations or the
Exchange Act and the rules and regulations of the Commission
thereunder (the "Exchange Act Regulations"), as applicable, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement or the Prospectus will, if and when such
documents are filed with the Commission, or when amended, as the case
may be, comply in all material respects to the requirements of the
1933 Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through the Representatives expressly
for use in the Registration Statement or the Prospectus.
(v) The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(vi) The financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as otherwise stated in
the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules included
in the Registration Statement present fairly the information required
to be stated therein.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there
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has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, (C) there has not been any material
change in the long term debt of the Company and (D) except for regular
quarterly dividends on Common Stock of the Company in amounts per
share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(viii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Michigan, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing under the laws of each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(ix) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and
the Prospectus, and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company (except for the Redeemable Cumulative Preferred
Stock, $2.05 Series of Michigan Consolidated Gas Company), directly or
through its subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or
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equity with the exception of Saginaw Bay Pipeline Company whose stock
is pledged under a certain project financing agreement.
(x) The Company had, as of the date indicated in the
Prospectus, an authorized capitalization as set forth in the
Prospectus; since such date there has been no change in the
consolidated capitalization of the Company and its subsidiaries (other
than changes in outstanding Common Stock resulting from employee
benefit plan or dividend reinvestment and stock purchase plan
transactions); and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable and conform to the descriptions thereof contained
in the Prospectus.
(xi) The Securities have been duly authorized by the Company
for issuance and sale to the Underwriters, and when issued and
delivered against payment therefor as provided herein, will be validly
issued and fully paid and non-assessable and will conform to all
statements relating to the Securities contained in the Prospectus, and
the issuance of the Securities is not subject to preemptive or other
similar rights.
(xii) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or any other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
any of its subsidiaries is subject.
(xiii) The issue and sale of the Securities by the Company;
the execution, delivery and performance by the Company of this
Agreement and the Pricing Agreement; the consummation of the
transactions herein and therein contemplated; and the compliance by
the Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action of the Company and
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company,
the charter or by-laws of
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any of its subsidiaries, or any applicable law, administrative
regulation or administrative or court decree.
(xiv) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors which might be expected to result in any
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(xv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its subsidiaries, which is required to
be disclosed in the Registration Statement or the Prospectus (other
than as disclosed therein), or which might result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of this
Agreement; all pending legal or governmental proceedings to which the
Company or any subsidiary of the Company is a party or of which any of
their respective property or assets is the subject which are not
described in the Registration Statement or the Prospectus, including
ordinary routine litigation incidental to the business of the Company
or any of its subsidiaries, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement, or to any documents incorporated by
reference therein, by the 1933 Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, which have
not been so filed.
(xvi) The Company and its subsidiaries have good and
marketable title to all material real and personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any material real property
and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material
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and do not materially interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries; the pipeline, distribution main and underground gas
storage easements enjoyed by the Company are valid, subsisting and
enforceable easements with such exceptions as are not material and do
not materially interfere with the conduct of the business of the
Company and its subsidiaries; the Company and its subsidiaries possess
all licenses, franchises, indeterminate permits, certificates, other
permits, authorizations, approvals, consents and orders of all
governmental authorities or agencies necessary for the ownership or
lease of the material properties owned or leased by each of them and
for the operation of the business now operated by each of them with
such exceptions which, singly or in the aggregate, are not material
and do not materially interfere with the conduct of the business of
the Company and its subsidiaries considered as one enterprise; all
such licenses, franchises, indeterminate permits, certificates, other
permits, orders, authorizations, approvals and consents are in full
force and effect and contain no unduly burdensome provisions that
would interfere with the conduct of the business of the Company and
its subsidiaries considered as one enterprise and, except as otherwise
set forth in the Prospectus, there are no legal or governmental
proceedings pending or threatened that would result in a material
modification, suspension or revocation thereof.
(xvii) No authorization, approval, consent, order,
registration or qualification of or with any court or governmental
authority or agency is required in connection with the issue and sale
of the Securities hereunder, or the consummation by the Company of any
other transactions contemplated hereby, except such as may be required
under the 1933 Act, the 1933 Act Regulations or state securities or
Blue Sky laws.
(xviii) This Agreement has been, and, at the Representation
Date, the Pricing Agreement will have been, duly executed and
delivered by the Company and constitute the legal, valid and binding
obligations of the Company enforceable in accordance with their
respective terms.
(xix) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the 1933
Act with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act.
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(xx) None of the Company or any of its subsidiaries is an
"investment company" or under the "control" of an "investment company"
as such terms are defined under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxi) The Company is presently exempt from the provisions of
the Public Utility Holding Company Act of 1935 (except Section 9
thereof) which would otherwise require it to register thereunder.
(xxii) The Company is in compliance with all provisions of
Section 1 of the Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter as
to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) On the
basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per share set forth
in the Pricing Agreement, the number of Securities set forth in Schedule A
hereto opposite the name of such Underwriter (except as otherwise provided in
the Pricing Agreement), plus any additional number of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(1) If the Company has elected not to rely upon
Rule 430A of the 1933 Act Regulations, the initial public offering price and
the purchase price per share to be paid by the several Underwriters for the
Securities have each been determined and set forth in the Pricing Agreement,
dated the date hereof, and any necessary amendments to the Registration
Statement and the Prospectus will be filed before the Registration Statement
becomes effective.
(2) If the Company has elected to rely upon
Rule 430A of the 1933 Act Regulations, the purchase price per share to be paid
by the several Underwriters for the Securities shall be an amount equal to the
initial public offering price, less an amount per share to be determined by
agreement between the Representatives and the Company. The initial public
offering price per share of the Securities shall be a fixed price to be
determined by agreement between the Representatives and the
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Company. The initial public offering price per share of the Securities shall
not be higher than the last reported sales price (regular way) or the last
reported asked price, whichever is higher, of the Common Stock on the New York
Stock Exchange immediately prior to determination of the public offering price.
The initial public offering price and the purchase price, when so determined,
shall be set forth in the Pricing Agreement. In the event that such prices
have not been agreed upon and the Pricing Agreement has not been executed and
delivered by all parties thereto by the close of business on the fourth
business day following the date of this Agreement, this Agreement shall
terminate forthwith, without liability of any party to any other party, unless
otherwise agreed to by the Company and the Representatives.
(b) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of LeBoeuf, Lamb,
Greene & MacRae, L.L.P., New York, New York, or at such other place as shall be
agreed upon by the Representatives and the Company, at 10:00 A.M., New York
time, on the fifth business day (unless postponed in accordance with the
provisions of Section 10) after execution of the Pricing Agreement, or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called "Closing Time"). Payment shall be made to the
Company by certified or official bank check or checks, or by wire transfer of
New York Clearing House or other similar next day funds to an account
designated in writing by the Company, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. Certificates for the Securities shall be
in such denominations and registered in such names as the Representatives may
request in writing at least two business days before Closing Time. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Securities which it has agreed to purchase. The
Representatives, individually and not as the representatives of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose check or
funds have not been received by Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder. The certificates for
the Securities will be made available for examination and packaging by the
Representatives not later than 10:00 A.M., New York time, on the last business
day prior to Closing Time at the offices of First Chicago Trust Company of New
York, 525 Washington Boulevard, Jersey City, New Jersey 07313.
SECTION 3. Covenants of the Company. The Company agrees with each
Underwriter as follows:
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(a) Promptly following the execution of this Agreement,
the Company will cause the Prospectus, including as a part thereof a prospectus
supplement relating to the Securities to be filed with the Commission pursuant
to Rule 424 of the 1933 Act Regulations and the Company will promptly advise
the Representatives when such filing has been made. Prior to the filing, the
Company will cooperate with the Representatives in the preparation of such
prospectus supplement to assure that the Representatives have no reasonable
objection to the form or content thereof when filed or mailed.
(b) The Company will notify the Representatives
immediately, and confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (iv) of the
receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(c) The Company will give the Representatives notice of
its intention to file or prepare any amendment to the Registration Statement
(including any post-effective amendment) or any amendment or supplement to the
Prospectus (including any revised prospectus which the Company proposes for use
by the Underwriters in connection with the offering of the Securities which
differs from the prospectus on file at the Commission at the time the
Registration Statement became effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations),
whether pursuant to the 1933 Act, the Exchange Act or otherwise, will furnish
the Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such amendment or supplement or use any such
prospectus to which the Representatives or counsel for the Underwriters shall
object.
(d) The Company will deliver to the Representatives as
many signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as the Representatives may reasonably request and will also
deliver to the Representatives a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters.
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(e) The Company will furnish to each Underwriter, from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the Exchange Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the Exchange Act or the respective
applicable rules and regulations of the Commission thereunder.
(f) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters, to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company will forthwith amend or supplement the
Prospectus or file such document (in form and substance satisfactory to counsel
for the Underwriters) so that, as so amended or supplemented, the Prospectus
will not include an 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 existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. In each jurisdiction in which
the Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 45 days (or 90
days, in the case of a period that is also the Company's fiscal year) after the
close of the period covered thereby, an earnings statement of the Company and
its subsidiaries (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a twelve-month period beginning not later than the
first day of the Company's fiscal quarter next following the "effective date"
(as defined in said Rule 158) of the Registration Statement.
(i) The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
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(j) If, at the time that the Registration Statement
became (or in the case of a post-effective amendment becomes) effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then immediately following the execution of the Pricing
Agreement, the Company will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act
Regulations, copies of an amended Prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement (including an
amended Prospectus), containing all information so omitted.
(k) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the Exchange Act within the time periods required by the Exchange Act
and the Exchange Act Regulations.
(l) The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(m) During a period of 180 days from the date of the
Pricing Agreement, the Company will not, without the Representatives' prior
written consent, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of any Common Stock or any security
convertible into Common Stock (except for Common Stock issued pursuant to
employee benefit plan or dividend reinvestment and stock purchase plan
transactions).
(n) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and changes in the financial
position of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the Closing Time), consolidated summary financial
information of the Company and its subsidiaries for such quarter in reasonable
detail.
(o) During a period of three years from the Closing Time,
to make generally available to the Representatives copies of all reports and
other communications (financial or other) mailed to stockholders, and to
deliver to the Representatives promptly after they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities of the
Company is listed; and shall furnish such additional information concerning the
business and financial condition of the Company as the Representatives may from
time to time reasonably request (such financial statements to be on a
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consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission).
SECTION 4. Payment of Expenses. The Company agrees with the several
Underwriters to pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the printing
of this Agreement and the Pricing Agreement, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(g), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any Legal Investment
Survey, (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of the Prospectus and any amendments or
supplements thereto, (vii) the printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any Legal Investment Survey, (viii) the fee
of the National Association of Securities Dealers, Inc., (ix) the fees and
expenses incurred in connection with the listing of the Securities on the New
York Stock Exchange and (x) the cost and charges of any transfer agent or
registrar.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i), the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued under the
1933 Act or proceedings therefor initiated or, to the knowledge of the Company
or any Underwriter, threatened by the Commission. If the Company has elected
to rely upon Rule 430A of the 1933 Act Regulations, the price of the Securities
and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been transmitted
to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to Closing Time the
Company shall have provided
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<PAGE> 15
evidence satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule 430A
of the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of Closing
Time, of Daniel L. Schiffer, Esq., Vice President, General Counsel and
Secretary of the Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Michigan.
(ii) The Company has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required.
(iv) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except for
subsequent issuances, if any, pursuant to employee benefit plan or
dividend reinvestment and stock purchase plan transactions), and the
shares ofissued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable.
(v) The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in the Pricing
Agreement, will be validly issued and fully paid and nonassessable.
(vi) The issuance of the Securities is not subject to
preemptive or other similar rights arising by operation of law or, to
the best of their knowledge and information, otherwise.
(vii) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
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<PAGE> 16
conduct its business as described in the Registration Statement and
the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and,
to the best of such counsel's knowledge and information, is owned by
the Company, directly or through its subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity with the exception of Saginaw Bay Pipeline Company whose stock
is pledged under a certain project finance agreement.
(viii) This Agreement and the Pricing Agreement
have each been duly authorized, executed and delivered by the Company.
(ix) The Registration Statement is effective
under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or, to the best of such
counsel's knowledge, threatened by the Commission.
(x) At the time the Registration Statement
became effective and at the Representation Date, the
Registration Statement (other than the financial statements and
supporting schedules and other financial or statistical data included
or incorporated by reference therein, as to which no opinion need be
rendered) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xi) The documents incorporated by reference
in the Prospectus at the time they were filed with the
Commission or amended (other than the financial statements and related
schedules and other financial or statistical data included or
incorporated by reference therein, as to which such counsel need
express no opinion), complied as to form in all material respects with
the requirements of the 1933 Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of the Registration Statement, an untrue
statement of a
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<PAGE> 17
material fact, or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, in the case of other documents which were filed under
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 not misleading.
(xii) The Common Stock conforms to the description
thereof contained in the Prospectus, and the form of the certificate
used to evidence the Securities is in due and proper form and
complies with all applicable statutory requirements.
(xiii) To the best of such counsel's knowledge and
information, there are no actions, suits or proceedings before or by
any court or governmental agency or body, domestic or foreign, pending
or threatened which are required to be disclosed in the Registration
Statement, other than those disclosed therein, and all pending legal
or governmental proceedings to which the Company or any of its
subsidiaries is a party or to which any of their property is subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(xiv) The information in the Prospectus under "MCN
Corporation", "Capitalization of MCN at December 31, 1994", "Use of
Proceeds" and "Description of MCN Capital Stock", to the extent that
they constitute matters of law, summaries of legal matters, documents
or proceedings, or legal conclusions, has been reviewed by such
counsel and is correct in all material respects.
(xv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be
described or referred to or incorporated by reference in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to or incorporated by reference therein or
filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated by
reference.
(xvi) No authorization, approval, consent, order,
registration or qualification of or with any court or governmental
authority or agency is required in connection
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<PAGE> 18
with the issuance and sale of the Securities or the consummation by
the Company of any transactions contemplated hereby, except such as
have been obtained and made under the 1933 Act and the 1933 Act
Regulations or such as may be required under state securities or Blue
Sky laws.
(xvii) The issuance and sale by the Company of the
Securities; the execution, delivery and performance by the Company of
this Agreement and the Pricing Agreement; the consummation of the
transactions contemplated herein and therein; and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action of the Company and will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries, or any applicable law, administrative
regulation or administrative or court decree.
(xviii) The Company and its subsidiaries possess all
licenses, franchises, indeterminate permits, certificates, other
permits, authorizations, approvals, consents and orders of all
governmental authorities or agencies necessary for the ownership or
lease of the material properties owned or leased by each of them and
for the operation of the business carried on by each of them as
described in the Registration Statement and Prospectus with such
exceptions as are not material and do not materially interfere with
the conduct of the business of the Company and its subsidiaries
considered as one enterprise; all such licenses, franchises,
indeterminate permits, certificates, other permits, authorizations,
approvals, and consents are in full force and effect and contain no
unduly burdensome provisions that would interfere with the conduct of
the business of the Company and its subsidiaries considered as one
enterprise and, except as otherwise set forth in the Registration
Statement and Prospectus, there are no legal or governmental
proceedings pending or threatened that would result in a material
modification, suspension or revocation thereof.
(xix) None of the Company or any of its subsidiaries
is an "investment company" or under the "control" of an "investment
company" as such terms are defined under the 1940 Act.
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<PAGE> 19
(xx) The Company is presently exempt from the provisions
of the Public Utility Holding Company Act of 1935 (except Section 9
thereof) which would otherwise require it to register thereunder.
(xxi) The Company is in compliance with all provisions of
Section 1 of the Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba.
(2) The favorable opinion, dated as of Closing Time, of
LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the Underwriters, with
respect to the matters set forth in (i), (v), (vi), (viii), (ix), (x) and (xii)
of subsection (b)(1) of this Section.
(3) In giving their opinions required by subsections
(b)(1) and (b)(2), respectively, of this Section Daniel L. Schiffer,
Esq. and LeBoeuf, Lamb, Greene & MacRae, L.L.P. shall each additionally state
that nothing has come to their attention that would lead them to believe that
the Registration Statement (other than the financial statements and related
schedules and other financial or statistical data included or incorporated by
reference therein, as to which counsel need express no opinion), at the time it
became effective or at the Representation Date, 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 the
Prospectus (other than the financial statements and related schedules and other
financial or statistical data included or incorporated by reference therein, as
to which counsel need express no opinion), at the Representation Date (unless
the term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective, in which case at the time it
is first provided to the Underwriters for such use) or at Closing Time,
included (or includes) an untrue statement of a material fact or omitted or
omits 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. In giving their opinion, LeBoeuf, Lamb, Greene & MacRae, L.L.P.
may rely as to matters of Michigan law upon the opinion of Daniel L. Schiffer,
Esq., which opinion shall be in form and substance satisfactory to counsel for
the Underwriters.
(c) At Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
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<PAGE> 20
as one enterprise, whether or not arising in the ordinary course of business,
and the Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, 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.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP a letter dated
the Representation Date in form and substance satisfactory to the
Representatives, to the effect set forth below and as to such other matters as
the Representatives may reasonably request, that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations;
(ii) In their opinion, the consolidated financial
statements and any supplementary financial information and
schedules audited (and, if applicable, prospective financial
statements and/or pro forma financial information examined) by them
and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
Exchange Act and the related published rules and regulations
thereunder; and if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, prospective
financial statements and/or condensed financial statements derived
from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the Representatives;
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference
in the Company's
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<PAGE> 21
Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial
statements for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted
auditing standards, including a reading of the unaudited
consolidated financial statements and other information
referred to below, a reading of the latest available unaudited
interim consolidated financial statements of the Company and
its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the audited consolidated
financial statements set forth in the Company's Annual Report
on Form 10-K for the most recent year, inquiries of officials
of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures
as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) The unaudited consolidated financial
statements set forth in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the
Registration Statement and the Prospectus as amended
or supplemented do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act as they apply to
Form 10-Q and the Exchange Act Regulations or are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements set forth in the Company's
Annual Report on Form 10-K for the most recent year
ended incorporated by reference in the Registration
Statement and the Prospectus as amended or
supplemented;
(B) any other unaudited income statement
data and balance sheet items included in the
Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements
from which such data and items were derived, and any
such unaudited data and items were not determined on
a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated
financial statements included or incorporated by
reference
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in the Registration Statement and the Prospectus as
amended or supplemented;
(C) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference
in the Prospectus as amended or supplemented do not comply
as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act
Regulations or the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of those statements;
(D) As of a specified date not more than five days
prior to the date of delivery of such letter, there has been
any change in the capital stock or long-term debt including
capital lease obligations (except for sinking fund and
installment requirements under their long-term debt
agreement, terms of the preferred stock of the Company and
purchases in the open market in anticipation thereof) or any
increase in short-term debt, or any decrease in consolidated
common shareholder's equity (other than quarterly dividends
declared to stockholders) of the Company and its
consolidated subsidiaries, in each case as compared with the
corresponding amounts shown in the latest consolidated
statement of financial position incorporated by reference in
the Registration Statement and the Prospectus as amended or
supplemented, except in each case for changes, increases or
decreases which the Prospectus as amended or supplemented,
including financial information incorporated by reference,
discloses have occurred or may occur or which are described
in such letter; and
(E) for the period from the date of the latest
consolidated financial statements included or incorporated
by reference in the Prospectus as amended or supplemented to
the end of the latest period for which consolidated
financial statements are available there were any decreases
in consolidated operating revenues, operating income, net
income or earnings available for Common Stock of the Company
and its consolidated subsidiaries, or any increases in any
items specified by the Representatives, in each case as
compared with the corresponding period in the preceding year
and with any other period of corresponding length specified
by the Representatives, except in each case for increases or
decreases which the Prospectus as amended or supplemented,
including
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<PAGE> 23
financial information incorporated by reference,
discloses have occurred or may occur or which are
described in such letter.
(F) The unaudited consolidated financial
statements referred to in Clause (E) are not stated
on a basis substantially consistent with the audited
consolidated financial statements incorporated by
reference in the Registration Statement and the
Prospectus as amended or supplemented.
(v) In addition to the limited procedures,
inspection of minute books, inquiries and other procedures
referred to in clause (iii) and (iv) above, they have carried
out certain other specified procedures, not constituting an
audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and
financial information which are derived from the general
accounting records of the Company and its subsidiaries, which
appear in the Prospectus as amended or supplemented and the
Registration Statement, in the Company's Annual Report on Form
10-K for the latest year ended and in the Company's Quarterly
Reports on Form 10-Q since the latest Annual Report on Form
10-K and which are specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
(e) At Closing Time the Representatives shall have
received from Deloitte & Touche LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section, except that the specified date referred to
shall be a date not more than five days prior to Closing Time.
(f) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(g) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded to any of the
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<PAGE> 24
Company's securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purpose of Rule
436(g)(2) under the 1933 Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its ratings of any of the Company's securities.
(h) At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange upon notice of issuance.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) of the 1933 Act Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c)
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hereof, the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto). The foregoing indemnity
with respect to any untrue statement contained in or omission from a
preliminary prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
such loss, liability, claim, damage or expense purchased any of the Securities
that are the subject thereof if such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) (in each case
exclusive of the documents from which information is incorporated by reference)
at or prior to the written confirmation of the sale of such Securities to such
person and the untrue statement contained in or omission from such preliminary
prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any
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<PAGE> 26
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting compensation paid by the
Company appearing on the cover page of the Prospectus bears to the initial
public offering price appearing thereon and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) The Representatives may
terminate this Agreement, by notice to the Company at any time at or prior to
Closing Time (i) if there has been, since the date of this Agreement or since
the respective dates as of which information is given in the Registration
Statement, any material adverse change in the business or the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered
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<PAGE> 27
as one enterprise, whether or not arising in the ordinary course of business,
or (ii) if there has occurred any material adverse change in the financial
markets in the United States or any outbreak of hostilities or escalation of
hostilities or calamity or crisis, the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
the Common Stock has been suspended by the Commission, or if trading generally
on either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal, New York or
Michigan authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement and the Pricing
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the total number of Securities, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Securities, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required
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<PAGE> 28
changes in the Registration Statement or Prospectus or in any other documents
or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to c/o Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated at Merrill Lynch World Headquarters, World
Financial Center, North Tower, New York, New York 10281, attention of Anthony
V. Leness, Managing Director; notices to the Company shall be directed to it at
MCN Corporation, 500 Griswold Street, Detroit, Michigan 48226, attention of
Daniel L. Schiffer, Vice President, General Counsel and Secretary.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters and the
Company and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the Underwriters and the Company and their respective
successors and legal representatives, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time unless otherwise
indicated.
SECTION 14. Overallotment Option. (a) In addition to the shares of
Common Stock being sold by the Company and described in the first paragraph of
this Agreement (which are referred to herein as the "Firm Shares"), the
Underwriters, at their option shall have the right to purchase from the Company
up to an aggregate of 750,000 additional shares ("Optional Shares") for the
purpose of covering any over-allotments made in connection with the sale of the
Firm Shares. The purchase price per share to be paid for the Optional Shares
shall be the same price per share to be paid for the Firm Shares. The option
granted hereby may be exercised as to all or any part of the Optional Shares at
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<PAGE> 29
any time and from time to time not more than 30 days subsequent to the date of
the initial public offering of the Securities. No Optional Shares shall be
sold or delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Shares or any portion thereof may be surrendered and terminated at any time
upon notice by the Representatives to the Company. Section 2 shall be deemed
to apply only to the purchase, sale and delivery of the Firm Shares.
References to Section 2 and references in the fourth paragraph of this
Agreement and in Schedule A hereto to the "Securities" shall be deemed to be
references to the "Firm Shares"; except as otherwise provided in this Section
14, other references in this Agreement to the "Securities" shall be deemed to
include the Firm Shares and the Optional Shares.
(b) The option granted hereby may be exercised by the
Representatives by giving written notice to the Company setting forth the
number of Optional Shares to be purchased by the Underwriters and the date and
time for delivery of the payment for the Optional Shares. Upon any exercise of
the option by the Representatives, the Company agrees to issue and sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, that Underwriter's proportionate share (based upon
the respective underwriting obligations of the several Underwriters hereunder
as set forth in Schedule A hereto except as may be adjusted to eliminate
fractions) of the number of Optional Shares specified in such notice. The
"Closing Time" as defined in Section 3 shall be deemed to be the "First Closing
Time", and the time for the delivery of and payment for Optional Shares (which
may be the First Closing Time) is herein referred to as the "Option Closing
Time". The Option Closing Time shall not be later than 10 days after the
Representatives give to the Company written notice of their election to
purchase Optional Shares. The preparation, registration, checking and delivery
of, and payment for, the Optional Shares shall occur or be made in the same
manner as provided in Section 3 for the Firm Shares, except as the
Representatives and the Company may otherwise agree.
(c) The conditions to the Underwriters' obligation set
forth in Section 5 shall be deemed to be conditions to the Underwriters'
obligations to purchase and pay for the Securities to be purchased on each
Option Closing Time; references in that Section and in Sections 1, 9 and 10 to
the "Closing Time" shall be deemed to be references to the Option Closing Time,
and references to the "Securities" in Section 5 shall be deemed to be
references to the Securities to be purchased at such Option Closing Time. A
termination of this Agreement as to the Optional Shares after the First Closing
Time will not terminate this Agreement as to the Firm Shares.
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<PAGE> 30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
MCN CORPORATION
By: /s/ William K. McCrackin
-------------------------
Name: William K. McCrackin
Title: Vice Chairman and Chief
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Anthony V. Leness
---------------------------
Authorized Signatory: Anthony V. Leness
For themselves and as the Representatives of the
several Underwriters named in Schedule A hereto.
-30-
<PAGE> 31
<TABLE>
<CAPTION>
SCHEDULE A
Name of Underwriter Number of Shares
------------------- ----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . 760,000
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . 760,000
Dean Witter Reynolds Inc. . . . . . . . . . . . . . . . . . . . 760,000
Donaldson, Lufkin & Jenrette
Securities Corporation. . . . . . . . . . . . . . . . . . . . 760,000
A.G. Edwards & Sons, Inc. . . . . . . . . . . . . . . . . . . . 760,000
Lehman Brothers Inc.. . . . . . . . . . . . . . . . . . . . . . 160,000
PaineWebber Incorporated. . . . . . . . . . . . . . . . . . . . 160,000
Robert W. Baird & Co. Incorporated. . . . . . . . . . . . . . . 80,000
First of Michigan Corporation . . . . . . . . . . . . . . . . . 80,000
Edward D. Jones & Co. . . . . . . . . . . . . . . . . . . . . . 80,000
Ladenburg, Thalmann & Co. Inc.. . . . . . . . . . . . . . . . . 80,000
Roney & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 80,000
Advest, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Cowen & Company . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Dain Bosworth Incorporated. . . . . . . . . . . . . . . . . . . 40,000
Interstate/Johnson Lane Corporation . . . . . . . . . . . . . . 40,000
Janney Montgomery Scott Inc.. . . . . . . . . . . . . . . . . . 40,000
Legg Mason Wood Walker, Incorporated . . . . . . . . . . . . . 40,000
McDonald & Company Securities, Inc. . . . . . . . . . . . . . . 40,000
The Ohio Company. . . . . . . . . . . . . . . . . . . . . . . . 40,000
Piper Jaffray Inc.. . . . . . . . . . . . . . . . . . . . . . . 40,000
Raymond James & Associates, Inc.. . . . . . . . . . . . . . . . 40,000
The Robinson-Humphrey Company, Inc. . . . . . . . . . . . . . . 40,000
Wheat, First Securities, Inc. . . . . . . . . . . . . . . . . . 40,000
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000,000
=========
</TABLE>
<PAGE> 32
Exhibit A
5,000,000 SHARES
MCN CORPORATION
(A MICHIGAN CORPORATION)
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
PRICING AGREEMENT
March 14, 1995
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
as the Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
Reference is made to the Purchase Agreement, dated March 14,
1995 (the "Purchase Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto of the above shares of Common Stock,
par value $.01 per share (the "Securities"), of MCN Corporation (the
"Company").
Pursuant to Section 2 of the Purchase Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be
$17.875.
2. The purchase price per share for the Securities to be
paid by the several Underwriters shall be $17.225, being an amount
equal to the initial public offering price set forth above less $.65
per share.
<PAGE> 33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
MCN CORPORATION
By: /s/ William K. McCrackin
----------------------------
Name: William K. McCrackin
Title: Vice Chairman and Chief
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Anthony V. Leness
---------------------------
Authorized Signatory: Anthony V. Leness
For themselves and as the Representatives of the
several Underwriters named in the Purchase Agreement.
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