SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 8-A/A
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AMENDMENT TO A REGISTRATION STATEMENT ON FORM 8-A
Pursuant to Section 12(b) or (g)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 4, 1999
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MCN ENERGY GROUP INC.
(Exact Name of Registrant as Specified in its Charter)
MICHIGAN 1-10070 38-2820658
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
500 GRISWOLD STREET, (313) 256-5500
DETROIT, MICHIGAN 48226 (Registrant's Telephone
(Address of Principal Executive Number, Including Area Code)
Offices)
NOT APPLICABLE
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
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The undersigned registrant hereby amends Items 1 and 2 of its
Registration Statement on Form 8-A dated December 28, 1989, as amended, as set
forth herein.
ITEM 1. AMENDED AND RESTATED DESCRIPTION OF REGISTRANT'S SECURITIES TO BE
REGISTERED.
The Board of Directors of MCN Energy Group Inc. (then MCN Corporation)
(the "Company") declared a dividend of one preferred share purchase right (a
"Right") for each outstanding share of common stock, par value $.01 per share
(the "Common Shares"), of the Company on December 20, 1989 in accordance with
the Rights Agreement (the "Rights Agreement") adopted on the same day between
the Company and National Bank of Detroit as Rights Agent. As of September 19,
1994 the Company, NBD Bank, N.A. as successor in interest to National Bank of
Detroit and First Chicago Trust Company of New York as successor Rights Agent
(the "Rights Agent") entered into the first amendment to the Rights Agreement.
As of July 23, 1997 the Company and the Rights Agent entered into the second
amendment to the Rights Agreement. As of October 4, 1999 the Company and the
Rights Agent entered into the third amendment to the Rights Agreement (the
"Amendment"). The Amendment was adopted in connection with an Agreement and Plan
of Merger (the "Merger Agreement") between the Company, DTE Energy Company, a
Michigan corporation ("Parent"), and DTE Enterprises, Inc., a Michigan
corporation and a direct, wholly owned subsidiary of Parent ("Merger
Subsidiary") dated as of October 4, 1999 (the "Merger Agreement"), pursuant to
which the Company will be merged with and into Merger Subsidiary upon the terms
and subject to the conditions set forth in the Merger Agreement (the "Merger").
The Amendment provides that the execution and delivery of the Merger Agreement
and the consummation of transactions contemplated thereby shall not cause (i)
Parent, Merger Subsidiary or affiliates of Parent to be deemed Acquiring
Persons, (ii) the occurrence of a Distribution Date, (iii) the occurrence of a
Shares Acquisition Date, or (iv) activation of "flip over" rights under Section
13 of the Rights Agreement. The Amendment also provides that the Rights will
expire immediately prior to the consummation of the Merger.
The following is a description of the Company's Rights Agreement, as
amended.
On December 20, 1989, the Board of Directors of the Company declared a
dividend of one Right for each outstanding Common Share of the Company. The
dividend was payable on January 12, 1990 (the "Record Date") to the stockholders
of record on that date. Each Right entitles the registered holder to purchase
from the Company one one-hundredth of a share of Junior Participating Preferred
Stock, Series A, without par value (the "Preferred Shares"), of the Company at a
price of $300 per one one-hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth in
the Rights Agreement dated as of December 20, 1989, between the Company and
National Bank of Detroit as Rights Agent, as amended by the amendment dated as
of September 19, 1994, between the Company, NBD Bank, N.A. as successor in
interest to National Bank of Detroit, and First Chicago Trust Company of New
York as successor Rights Agent, as further amended by the amendment dated as of
July 23,
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1997, between the Company and First Chicago Trust Company of New York as
successor Rights Agent, and as further amended by the Amendment dated as of
October 4, 1999, between the Company and First Chicago Trust Company of New York
as successor Rights Agent.
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired beneficial ownership of 20% or more of the
outstanding Common Shares or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such time as any person
or group of affiliated or associated person becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 20% or more of the outstanding Common Shares
(the earlier of such dates being called the "Distribution Date"), the Rights
will be evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificate with a copy
of a Summary of Rights to Purchase Preferred Shares (the "Summary") attached
thereto. The Rights Agreement provides that none of DTE Energy Company, a
Michigan corporation ("Parent"), DTE Enterprises, Inc., a Michigan corporation
and a direct, wholly owned subsidiary of Parent ("Merger Subsidiary"), nor any
affiliate of Parent shall be deemed an Acquiring Person for entering into the
Agreement and Plan of Merger between Parent, Merger Subsidiary and the Company
dated October 4, 1999 (the "Merger Agreement") or for taking part in the
transactions contemplated in the Merger Agreement. The Rights Agreement also
provides that no Distribution Date shall occur by reason or as a result of the
Merger Agreement or any of the transactions contemplated thereby.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued
after the Record Date upon transfer or new issuance of Common Shares will
contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares outstanding as of
the Record Date, even without such notation or a copy of the Summary being
attached thereto, will also constitute the transfer of the Rights associated
with the Common Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Common Shares
as of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire at or prior to the earliest of i) the close of business on July 23,
2007 (the "Final Expiration Date"), or (ii) immediately prior to the
consummation of the merger of the Company with and into Merger Subsidiary as
contemplated by and in accordance with the Merger
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Agreement, unless the Final Expiration Date is extended or unless the Rights are
earlier redeemed or exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then-current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one-hundredths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date. The Board of Directors of the Company, on
October 27, 1994, authorized a two-for-one split of common stock to shareholders
of record on November 10, 1994.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend of 100 times the dividend declared per Common Share. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per Common Share. In the event
of any merger, consolidation or other transaction in which Common Shares are
exchanged, each Preferred Share will be entitled to receive 100 times the amount
received per Common Share. These rights are protected by customary antidilution
provisions. Each Preferred Share will also have one vote, voting together with
the Common Shares.
Because of the nature of the Preferred Shares' dividend and liquidation
rights, and the non-redemption feature, the value of the one one-hundredth
interest in a Preferred Share purchasable upon exercise of each Right should
approximate the value of one Common Share.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold, but in all events not including the transactions contemplated by
the Merger Agreement, then, and in each such case, except the transactions
contemplated by the Merger Agreement, proper provision will be made so that each
holder of a Right will thereafter have the right
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to receive upon exercise that number of shares of common stock of the acquiring
company which at the time of such transaction will have a market value of two
times the Purchase Price. In the event that any person or group of affiliated or
associated persons becomes an Acquiring Person, proper provision shall be made
so that each holder of a Right, other than Rights beneficially owned by the
Acquiring Person (which will thereafter be void), will thereafter have the right
to receive upon exercise that number of Common Shares having a market value of
two times the Purchase Price.
At any time after any Person becomes an Acquiring Person and prior to
the acquisition by such person or group of 50% or more of the outstanding Common
Shares, the Board of Directors of the Company may exchange the Rights (other
than Rights owned by such person or group which will have become void), in whole
or in part, at an exchange ratio of one Common Share, or one one-hundredth of a
Preferred Share (or of a share of a class or series of the Company's preferred
stock having equivalent rights, preferences and privileges), per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 20% or more of the outstanding
Common Shares, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time on such basis
with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to lower certain thresholds described above to not less than the greater of (i)
any percentage greater than the largest percentage of the outstanding Common
Shares then known to the Company to be beneficially owned by any person or group
of affiliated or associated persons and (ii) 10%, except that from and after
such time as any person or group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the interests of the
holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
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The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board of Directors, except pursuant to an
offer conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors since the Rights may be redeemed by the Company at the
Redemption Price prior to the time that a person or group has acquired
beneficial ownership of 20% or more of the Common Shares.
The Rights Agreement, dated as of December 20, 1989, between the
Company and National Bank of Detroit, as Rights Agent, specifying the terms of
the Rights and including the form of the Certificate of Establishment and
Designation setting forth the terms of the Preferred Shares as an exhibit
thereto, the Amendment to the Rights Agreement, dated as of September 19, 1994
between the Company, NBD Bank, N.A. as successor in interest to National Bank of
Detroit, and First Chicago Trust Company of New York, as successor Rights Agent,
the Amendment to the Rights Agreement, dated as of July 23, 1997, between the
Company and First Chicago Trust Company of New York, as successor Rights Agent,
and the Amendment to the Rights Agreement, dated as of October 4, 1999, between
the Company and First Chicago Trust Company of New York, as successor Rights
Agent are attached hereto as exhibits and are incorporated herein by reference.
The foregoing description of the Rights is qualified in its entirety by
reference to such exhibits.
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ITEM 2. EXHIBITS.
4.1. Rights Agreement, dated as of December 20, 1989, between MCN Energy
Group Inc. (formerly MCN Corporation) and National Bank of Detroit, as
Rights Agent, which includes the form of Certificate of Establishment
and Designation setting forth the terms of the Junior Participating
Preferred Stock, Series A, without par value, as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary of Rights to Purchase
Preferred Shares as Exhibit C (incorporated by reference to Exhibit 1
to the Company's Registration Statement on Form 8-A dated December 28,
1989) (the "Rights Agreement").
4.2. Amendment, dated as of September 19, 1994, to the Rights Agreement,
between MCN Energy Group Inc. (formerly MCN Corporation), NBD Bank,
N.A. as successor in interest to National Bank of Detroit, and First
Chicago Trust Company of New York as successor Rights Agent.
4.3. Amendment, dated as of July 23, 1997, to the Rights Agreement
(incorporated by reference to Exhibit 4 to the Company's Current Report
on Form 8-K dated July 23, 1997).
4.4. Amendment, dated as of October 4, 1999, to the Rights Agreement,
between MCN Energy Group Inc. (formerly MCN Corporation), and First
Chicago Trust Company of New York as successor Rights Agent.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
MCN ENERGY GROUP INC.
By: /s/ Daniel L. Schiffer
---------------------------------
Name: Daniel L. Schiffer
Title: Senior Vice President, General
Counsel and Secretary
Dated: October 6, 1999
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EXHIBIT LIST
4.1. Rights Agreement, dated as of December 20, 1989, between MCN Energy
Group Inc. (formerly MCN Corporation) and National Bank of Detroit, as
Rights Agent, which includes the form of Certificate of Establishment
and Designation setting forth the terms of the Junior Participating
Preferred Stock, Series A, without par value, as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary of Rights to Purchase
Preferred Shares as Exhibit C (incorporated by reference to Exhibit 1
to the Company's Registration Statement on Form 8-A dated December 28,
1989) (the "Rights Agreement").
4.2. Amendment, dated as of September 19, 1994, to the Rights Agreement,
between MCN Energy Group Inc. (formerly MCN Corporation), NBD Bank,
N.A. as successor in interest to National Bank of Detroit, and First
Chicago Trust Company of New York as successor Rights Agent.
4.3. Amendment, dated as of July 23, 1997, to the Rights Agreement
(incorporated by reference to Exhibit 4 to the Company's Current Report
on Form 8-K dated July 23, 1997).
4.4. Amendment, dated as of October 4, 1999, to the Rights Agreement,
between MCN Energy Group Inc. (formerly MCN Corporation), and First
Chicago Trust Company of New York as successor Rights Agent.
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EXHIBIT 4.2
MCN CORPORATION
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of September 19, 1994 (the "Amendment"), to
the Rights Agreement, dated as of December 20, 1989 (the "Rights Agreement"),
between MCN CORPORATION, a Michigan corporation (the "Company"), and NBD BANK,
N.A. ("NBD") as successor in interest to NATIONAL BANK OF DETROIT.
W I T N E S S E T H:
--------------------
WHEREAS, NBD is currently the Rights Agent under the Rights Agreement;
and
WHEREAS, NBD desires to resign as Rights Agent and the Company desires
to appoint First Chicago Trust Company of New York as the successor Rights
Agent;
NOW, THEREFORE, pursuant to Section 27 of the Rights Agreement and in
consideration of the premises and mutual agreements set forth in the Rights
Agreement and this Amendment, the parties hereby agree as follows:
1. Resignation and Succession. NBD hereby resigns as the Rights Agent
under the Rights Agreement effective as of the date hereof. The Company
hereby appoints First Chicago Trust Company of New York as the
successor Rights Agent under the Rights Agreement. First Chicago Trust
Company of New York hereby accepts the appointment as the Rights Agent
and agrees to the terms of the Rights Agreement.
2. Change of Rights Agent. The fifth sentence of Section 21 of the Rights
Agreement is hereby amended to read as follows:
"Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be a corporation organized and doing business under
the laws of the United States or of any State of the United States, in
good standing, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision
or examination by federal or state authority and which, at the time of
its appointment as Rights Agent, (a) has a combined capital and surplus
of at least $50 million or (b) is an affiliate of a corporation with a
combined capital and surplus of at least $50 million."
3. Notices. Section 26 of the Rights Agreement relating to notices is
hereby amended to delete the address of NBD and to substitute in its
place the following address:
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First Amendment to Rights Agreement
page 2
First Chicago Trust Company of New York
Tenders & Exchanges Administration
Suite 4660
525 Washington Blvd.
Jersey City, N.J. 07310
4. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as amended hereby.
5. Except as set forth herein, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
6. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
MCN CORPORATION
By: /s/ Daniel L. Schiffer
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Daniel L. Schiffer
Vice President, General Counsel and
Secretary
NBD Bank, N.A.
By: /s/ Ernest J. Beck
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Ernest J. Beck
Second Vice President
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ James Gorostiola
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James Gorostiola
Assistant Vice President
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EXHIBIT 4.4
MCN ENERGY GROUP INC.
THIRD AMENDMENT
to
RIGHTS AGREEMENT
(October 4, 1999)
--------------------------------
THIS THIRD AMENDMENT dated as of October 4, 1999 (the "Amendment")
amends the Rights Agreement as amended (the "Rights Agreement") by and between
MCN Energy Group Inc., a Michigan corporation (formerly MCN Corporation) (the
"Company") and First Chicago Trust Company of New York, a New York corporation,
(the "Rights Agent"), as successor to National Bank of Detroit. All terms not
otherwise defined herein shall have the meaning given such terms in the
Agreement.
WHEREAS, the above-mentioned parties have previously entered into that
certain Rights Agreement dated as of December 20, 1989, as amended by an
Amendment dated as of September 19, 1994, and an Amendment dated as of July 23,
1997;
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interest of the Company and its stockholders to effect certain
amendments to the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement the Company
may, subject to certain limitations, amend the Rights Agreement without the
approval of any holders of Rights Certificates to make any provisions with
respect to the Rights which the Company deems necessary or desirable;
WHEREAS, the Company will be entering into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of October 4, 1999, among the Company,
DTE Energy Company, a Michigan corporation ("Parent") and DTE Enterprises, Inc.,
a Michigan corporation and a direct, wholly owned subsidiary of Parent ("Merger
Subsidiary"), whereby the Company will merge with and into Merger Subsidiary
(the "Merger") upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS, the Board of Directors deems it desirable and in the best
interests of its shareholders that the transactions contemplated by the Merger
Agreement be consummated;
WHEREAS, Section 5.1.(p) of the Merger Agreement provides that, the
Company shall amend the Rights Agreement to provide that no "Distribution Date"
shall occur, that the Rights will not separate from the shares, that Parent
shall not become an "Acquiring Person" by reason or as a result of the
consummation of the Merger or any other transactions contemplated by the Merger
Agreement and that the Rights Agreement will expire immediately prior to the
consummation of the Merger;
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WHEREAS, such parties wish to amend the Rights Agreement in the manner
set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment.
(a) All capitalized terms used herein, unless otherwise defined herein,
shall have the meanings given them in the Rights Agreement, and each reference
in the Rights Agreement to "this Agreement," "hereof," "herein," "hereunder" or
"hereby" and each other similar reference shall be deemed to refer to the Rights
Agreement as amended hereby. All references to the Rights Agreement in any other
agreement between or among any of the parties hereto relating to the
transactions contemplated by the Rights Agreement shall be deemed to refer to
the Rights Agreement as amended hereby.
(b) The definition of "Acquiring Person" in Section 1(a) is hereby
amended by replacing it in its entirety with the following:
"(a) "Acquiring Person" shall mean any Person (as hereinafter defined)
who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as hereinafter defined) of 20% or more of the Common Shares of
the Company then outstanding, but shall not include the Company, any
Subsidiary (as hereinafter defined) of the Company, any employee
benefit plan of the Company or any Subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any such
plan. Notwithstanding the foregoing, no Person shall become an
Acquiring Person as the result of an acquisition of Common Shares by
the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such
Person to 20% or more of the Common Shares of the Company then
outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 20% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial Owner
of any additional Common Shares of the Company, then such Person shall
be deemed to be an Acquiring Person; PROVIDED FURTHER that neither
Parent nor Merger Subsidiary nor any of Parent's affiliates shall
become an Acquiring Person by reason or as a result of the Merger or
any other transactions contemplated by the Merger Agreement.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of Common Shares
so that such person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this paragraph (a),
then such Person shall not be deemed to be an "Acquiring Person" for
any purpose of this Rights Agreement."
(c) The definition of "Distribution Date" in Section 1(g) is hereby
amended by replacing
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it in its entirety with the following:
"(g) "Distribution Date" shall have the meaning set forth in Section 3
hereof; PROVIDED HOWEVER that no Distribution Date shall occur by
reason or as a result of the Merger or any other transactions
contemplated by the Merger Agreement."
(d) The definition of "Shares Acquisition Date" in Section 1(l) is
hereby amended by replacing it in its entirety with the following:
"(l) "Shares Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such; PROVIDED THAT no Shares Acquisition Date shall
occur by reason or as a result of the Merger or any other transactions
contemplated by the Merger Agreement."
(e) The following definitions are hereby added to Section 1:
""Merger" means the merger of the Company with and into Merger
Subsidiary upon the terms and subject to the conditions set forth in the Merger
Agreement."
""Merger Agreement" means the Agreement and Plan of Merger, dated as of
October 4, 1999, among the Company, Merger Subsidiary and Parent as the same may
be amended pursuant to its terms."
""Merger Subsidiary" means DTE Enterprises, Inc., a Michigan
corporation and a direct, wholly owned subsidiary of DTE Energy Company, a
Michigan corporation."
""Parent" means DTE Energy Company, a Michigan corporation."
(f) Section 3(a) is hereby amended by replacing it in its entirety with
the following:
"Section 3. Issue of Right Certificates. (a) Until the earlier of (i)
the tenth day after the Shares Acquisition Date or (ii) the tenth
business day (or such later date as may be determined by action of the
Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any Person
(other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any
entity holding Common Shares for or pursuant to the terms of any such
plan) of, or of the first public announcement of the intention of any
Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the
Company or any entity holding Common Shares for or pursuant to the
terms of any such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the
Beneficial Owner of Common Shares aggregating 20% or more of the then
outstanding Common Shares (including any such date which is after the
date of this Agreement and prior to the issuance of the Rights; the
earlier of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be
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evidenced (subject to the provisions of Section 3(b) hereof) by the
certificates for Common Shares registered in the names of the holders
thereof or by the entries in the Company's registrar for Common Shares
which are evidenced by book-entry register only (which certificates or
entries shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the transfer
of Common Shares; PROVIDED HOWEVER that no Distribution Date shall
occur by reason or as a result of the Merger or any other transactions
contemplated by the Merger Agreement. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights
Agent will countersign, and the Company will send or cause to be sent
(and the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Shares
as of the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate,
in substantially the form of Exhibit B hereto (a "Right Certificate")
evidencing one Right for each Common Share so held. Notwithstanding the
foregoing, but subject to Section 14 hereof, Right Certificates will be
issued directly to participants in the Company's Dividend Reinvestment
Plan and not to the agent of the Company for such plan based on the
number of Common Shares beneficially owned by each participant pursuant
to such plan. As of the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(g) Section 13 of the Agreement is hereby amended by replacing it in
its entirety as follows:
"Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, at any time after
a Person has become an Acquiring Person, (a) the Company shall
consolidate with, or merge with and into, any other Person, (b) any
Person shall consolidate with the Company, or merge with and into the
Company and the Company shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or
part of the Common Shares shall be changed into or exchanged for stock
or other securities of any other Person (or the Company) or cash or any
other property, or (c) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise transfer), in
one or more transactions, assets or earning power aggregating 50% or
more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person other than the Company or one or
more of its wholly-owned Subsidiaries, then, and in each such case,
proper provision shall be made so that (i) each holder of a Right
(except as otherwise provided herein) shall thereafter have the right
to receive, upon the exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-hundredths
of a Preferred Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of Preferred
Shares, such number of Common Shares of such other Person (including
the Company as successor thereto or as the surviving corporation) as
shall equal the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a Preferred Share
for which a Right is then exercisable and dividing that product by (B)
50% of the then current per share market price of the
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Common Shares of such other Person (determined pursuant to Section
11(d) hereof) on the date of consummation of such consolidation,
merger, sale or transfer; (ii) the issuer of such Common Shares shall
thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties
of the Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such issuer; and (iv) such
issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares in accordance
with Section 9 hereof) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the Common
Shares thereafter deliverable upon the exercise of the Rights. The
Company shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Company and such issuer shall have
executed and delivered to the Rights Agent a supplemental agreement so
providing. The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at the time of such transaction there
are any rights, warrants, instruments or securities outstanding or any
agreements or arrangements which, as a result of the consummation of
such transaction, would eliminate or substantially diminish the
benefits intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers; PROVIDED HOWEVER that the
provisions of this Section 13 shall not apply to Parent, Merger
Subsidiary, the Merger or the transactions contemplated by the Merger
Agreement.
(h) Section 7(a) of the Agreement is hereby amended by replacing it in
its entirety as follows:
"Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon surrender
of the Right Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at the
principal office of the Rights Agent or the office or agency of the
Rights Agent in New York, New York, together with payment of the
Purchase Price for each one one-hundredth of a Preferred Share as to
which the Rights are exercised, at or prior to the earliest of (i) the
close of business on July 23, 2007 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"), (iii) the time at which the Rights are
exchanged as provided in Section 24 hereof, or (iv) immediately prior
to the consummation of the merger of the Company with and into Merger
Subsidiary as contemplated by and in accordance with the Merger
Agreement.
2. Miscellaneous.
(a) Choice of Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Michigan and for all purposes shall be governed
and construed in accordance with the laws of such State applicable to contracts
to be made and performed entirely within such State.
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(b) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(c) Severability. If any term or provision of this Amendment is held by
a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms and provisions of this Amendment shall
in no way be affected, impaired or invalidated.
(d) Existing Terms. The existing terms and conditions of the Agreement
shall remain in full force and effect except as such terms and conditions are
specifically amended or conflict with the terms of this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed by the
respective authorized officers of the parties hereto, in each case as of the day
and year first above written.
The Company:
MCN ENERGY GROUP INC.
By: /s/ Daniel L. Schiffer
----------------------------------
Name: Daniel L. Schiffer
Title: Senior Vice President,
General Counsel and Secretary
Rights Agent:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ Michael S. Duncan
----------------------------------
Name: Michael S. Duncan
Title: Director, Corporate Actions
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