exv4w9






EXHIBIT 4.9




DTE ENERGY COMPANY

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

TRUSTEE




 






SUPPLEMENTAL INDENTURE

DATED AS OF                           




 






SUPPLEMENTING THE AMENDED AND RESTATED INDENTURE

DATED AS OF APRIL 9, 2001




PROVIDING FOR




         SERIES             % SENIOR NOTES DUE         




 









 





     SUPPLEMENTAL INDENTURE, dated as of the          day of                     ,           (the
“Supplemental Indenture”), between DTE ENERGY COMPANY, a corporation organized and existing under
the laws of the State of Michigan (the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A., having its principal office in The City of Chicago, Illinois, as trustee (the “Trustee”);



     WHEREAS, the Company has heretofore executed and delivered to the Trustee an Amended and
Restated Indenture, dated as of April 9, 2001 (the “Original Indenture”), as amended, supplemented
or modified (as so amended, supplemented or modified, the “Indenture”) providing for the issuance
by the Company from time to time of its debt securities; and



     WHEREAS, the Company now desires to provide for the issuance of a series of its unsecured,
senior [convertible/exchangeable] [appropriate revisions, insertions and/or deletions to be made to
the conversion provisions or otherwise in the event of exchangeable securities] debt securities
pursuant to the Original Indenture; and



     WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved
to it under the provisions of the Original Indenture, including Section 901 thereof, and pursuant
to appropriate resolutions of the Board of Directors, has duly determined to make, execute and
deliver to the Trustee this Supplemental Indenture to the Original Indenture as permitted by
Section 201 and Section 301 of the Original Indenture in order to establish the form or terms of,
and to provide for the creation and issue of, a series of its debt securities under the Original
Indenture, which shall be known as the “          Series              % Senior Notes due         ”
(the “Notes”); [and]



     [WHEREAS, DTE Energy Trust III, a Delaware statutory trust (the “Trust”), has offered to the
public $                    aggregate liquidation amount of its         % Trust Preferred
Securities (the “Trust Preferred Securities”), representing a preferred undivided beneficial
interest in the assets of the Trust, and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company of
$                      aggregate liquidation amount of its        % common securities (the “Common
Securities” and, together with the Trust Preferred Securities, the “Trust Securities”), in
$                     aggregate principal amount of the Notes; and]



     WHEREAS, all things necessary to make such debt securities, when executed by the Company and
authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms
and subject to the conditions hereinafter and in the Original Indenture set forth against payment
therefor, the valid, binding and legal obligations of the Company and to make this Supplemental
Indenture a valid, binding and legal agreement of the Company, have been done;



     NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the terms
of a series of debt securities, and for and in consideration of the premises and of the covenants
contained in the Original Indenture and in this Supplemental Indenture and for other good and
valuable consideration the
receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed
as follows:



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ARTICLE ONE




DEFINITIONS AND OTHER

PROVISIONS OF GENERAL APPLICATION




     SECTION 101. Definitions.  Each capitalized term that is used herein and is defined in the
Original Indenture shall have the meaning specified in the Original Indenture unless such term is
otherwise defined herein; provided, that [the following terms shall have the meanings given to them
in the Agreement: (i) Underwriting Agreement; (ii) Delaware Trustee; (iii) Distributions; (iv)
Investment Company Event; (v) Property Trustee; (vi) Trust Preferred Securities Guarantee; (vii)
Tax Event; (viii) Trust Preferred Security Certificate; (ix) Administrative Trustee; and (x)
Debenture; and, provided further that]:



     [“Additional Interest” has the meaning set forth in Section 204(e).]



     [“Agreement” means the Amended and Restated Trust Agreement of the Trust, dated as of
                                 .]



     [“Applicable Procedures” means, with respect to any transfer or exchange of beneficial
ownership interests in a Global Debenture, the rules and procedures of the Depositary that are
applicable to such transfer or exchange.]



     “Business Day” means any day other than a Saturday or Sunday or a day on which commercial
banks in The City of New York are required or authorized by law or executive order to be closed.



     [“Capital Stock” means with respect to any Person organized as a Corporation, any and all
shares, interests, rights to purchase, warrants, options, participations or other equivalents of or
interest in (however designated) corporate stock, and (ii) with respect to any Person that is not
organized as a Corporation, the partnership, membership or other equity interests or participations
in such Person.]



     [“Certificated Security” means a security in substantially the form attached hereto as Exhibit
A, except for the legend thereon, which is applicable only to Global Notes.]



     [“Common Securities” has the meaning specified in the recitals above.]



     [“Company Notice” has the meaning specified in Section 705.]



     [“Company Notice Date” has the meaning specified in Section 705).]



     [“Conversion Agent” shall be the agent specified in Section 204(c).]



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     [“Conversion Date” has the meaning specified in Section 605.]



     [“Conversion Notice” has the meaning specified in Section 605.]



     [“Conversion Price” has the meaning specified in Section 602.]



     [“Conversion Rate” has the meaning specified in Section 601.]



     [“Coupon Rate” has the meaning set forth in Section 204(b).]



     [“Creditor” has the meaning set forth in Section 401(d).]



     [“Current Market Price,” on any date, means, with respect to the Common Stock of the Company,
the average of the daily closing or last sale prices for the shorter of:



          (1) 10 consecutive Business Days ending on the last full trading day on the exchange or market
referred to in determining the daily closing or last sale prices prior to the Time of
Determination; or




          (2) the period commencing on the date next succeeding the first public announcement of the
issuance of rights or warrants or distribution through the last full trading day prior to the Time
of Determination.]




     [“Disqualified Stock” means any Capital Stock of the Company that, by its terms (or by the
terms of any security into which it is convertible, or for which it is exchangeable, in each case
at the option of the holder of the Capital Stock), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the
option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91
days after the Stated Maturity of the Debentures.]



     [“Dissolution Event” means the dissolution of the Trust and distribution of the Debentures
held by the Property Trustee pro rata to the holders of the Trust Securities in accordance with the
Agreement, such event to occur at the option of the Company at any time.]



     [“Excess Payment” means the excess of the aggregate of the cash and value of other
consideration paid by the Company or any of its Subsidiaries with respect to shares acquired in a
tender offer over the market value of such acquired shares after giving effect to the completion of
a tender offer.]



     [“Expiration Date” has the meaning specified in Section 609(d)(2).]



     [“Expiration Time” has the meaning specified in Section 609(d)(2).]



     [“Fundamental Change” has the meaning specified in Section 801(a).]



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     [“Fundamental Change Offer” means an offer by the Company to pay cash on the Fundamental
Change Purchase Date equal to the Fundamental Change Purchase Price.]



     [“Fundamental Change Purchase Date” has the meaning specified in Section 801.]



     [“Fundamental Change Purchase Notice” has the meaning specified in Section 801.]



     [“Fundamental Change Purchase Price” means, in connection with a Fundamental Change Offer,
100% of the aggregate principal amount of Debentures to be purchased in such offer, together with
interest accrued to, but excluding, the Fundamental Change Purchase Date.]



     [“Global Debentures” means the Debentures that will initially be issued in global form under a
book-entry system, registered in the name of DTC, or its nominee, who is hereby designated as U.S.
Depositary and Depositary under the Original Indenture.]



     [“Guarantee” means each guarantee agreement executed by the Company with respect to the Trust
Preferred Securities or similar securities issued by the Trust or another financing entity pursuant
to which the Company irrevocably and unconditionally agrees to pay the guarantee payments (as
defined in such guarantee agreement) to the holders of such Trust Preferred Securities or similar
securities.]



     [“Market Price” has the meaning specified in Section 704.]



     [“NASDAQ” means NASDAQ Stock Market, Inc.]



     [“Non Book-Entry Trust Preferred Securities” has the meaning set forth in Section 203(a).]



     [“NYSE” means the New York Stock Exchange.]



     [“Permitted Holder” has the meaning specified in Section 801.]



     [“Prepayment Price” has the meaning set forth in Section 301.]



     [“Purchase Date” means each of                            ,                           ,
                           and                           .]



     [“Purchase Notice” has the meaning specified in Section 701.]



     [“Purchase Price” means:



          (1) in the event that the Company has elected to pay the Purchase Price, in whole or in part,
in shares of Common Stock, the number of shares of common stock
equal to the portion of the Purchase Price to be paid in Common Stock divided by 95% of the
Market Price; or



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          (2) in the event that the Company has elected to pay the Purchase Price in cash, $1,000 per
$1,000 principal amount of Debentures; plus, in either case, accrued and unpaid interest to, but
excluding, the applicable Purchase Date.]




     [“Purchased Shares” has the meaning specified in Section 609(d)(2).]



     [“purchases” has the meaning specified in Section 609(d)(3).]



     [“Rights Plan” means a plan of the Company providing for the issuance by the Company to all
holders of its Common Stock of rights entitling the holders thereof to subscribe for or purchase
shares of Common Stock or any class or series of preferred stock, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in
respect of future issuances of Common Stock, in each case until the occurrence of a specified event
or events.]



     [“Sale Price” has the meaning specified in Section 704.]



     [“Special Event” means a Tax Event or an Investment Company Event, as the case may be.]



     [“tender offer” has the meaning specified in Section 609(d)(3).]



     [“tendered shares” has the meaning specified in Section 609(d)(3).]



     [“Time of Determination” has the meaning specified in Section 609(d)(1).]



     [“Trading Day” means a day during which trading in securities generally occurs on the NYSE or
NASDAQ or, if the Common Stock is not listed on the NYSE or NASDAQ, on the principal other national
or regional securities exchange or market on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional securities exchange, on the other principal
market on which the Common Stock is then traded.]



     [“Triggering Distribution” has the meaning specified in Section 609(d)(1).]



     [“Trust” has the meaning specified in the recitals above.]



     [“Trust Preferred Securities” has the meaning specified in the recitals above.]



     [“Trust Securities” has the meaning specified in the recitals above.]



     SECTION 102. Section References. Each reference to a particular section set forth in this
Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental
Indenture.



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ARTICLE TWO




TITLE AND TERMS OF THE SECURITIES; STATED MATURITY




     SECTION 201. Title of the Securities; Stated Maturity. This Supplemental Indenture hereby
establishes a series of Securities, which shall be known as the Company’s “         Series    
        % Senior Notes due         ” (the “Notes”). The Stated Maturity on which the principal of
the Notes shall be due and payable will be                             .



     SECTION 202. Rank. The Notes shall rank equally with all other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding.



     SECTION 203. Variations from the Original Indenture. [Section 1009 of the Original Indenture
shall be applicable to the Notes.] [Section 403(2) and Section 403(3) [shall] [shall not] be
applicable to the Notes; the Company’s obligations under Section 1009, without limitation, shall be
subject to defeasance in accordance with Section 403(3).]



     [Insert for convertible/exchangeable Notes] [The Original Indenture is hereby amended, with
respect to the Notes only, by replacing the final paragraph in Section 307 of the Original
Indenture with the following paragraphs:



     On conversion of a Holder’s Notes, such Holder shall not receive any cash payment of interest.
The Company’s delivery to a Holder of the full number of shares of Common Stock into which a Note
is convertible, together with any cash payment for such Holder’s fractional shares, shall be deemed
to satisfy the Company’s obligation to pay the principal amount at maturity of the Note and to
satisfy the Company’s obligation to pay accrued interest attributable to the period from the most
recent Interest Payment Date through the Conversion Date (unless such Notes or portions thereof
have been called for redemption in accordance with Article Three hereof on a Redemption Date that
occurs between a Regular Record Date and the Interest Payment Date to which it relates, in which
case any accrued interest shall be paid to the Holders of record of such Notes at the close of
business on such Regular Record Date).



     Notwithstanding the above, if any Notes are converted after a Regular Record Date but prior to
the next succeeding Interest Payment Date, Holders of such Notes at the close of business on such
Regular Record Date shall receive the interest payable on such Notes on the corresponding Interest
Payment Date notwithstanding the conversion. Such Notes, upon surrender for conversion, must be
accompanied by funds equal to the amount of interest payable on the principal amount of the Notes
so converted, unless such Notes have been called for redemption on a Redemption Date that occurs
between a Regular Record Date and the Interest Payment Date to which it relates, in which case no
such payment shall be required.]



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     SECTION 204. Amount and Denominations; DTC. (a) The aggregate principal amount of the Notes
that may be issued under this Supplemental Indenture is limited initially to $                    
(except as provided in Section 301(2) of the Original Indenture); provided that the Company may,
without the consent of the Holders of the Outstanding Notes, “reopen” this series of Securities so
as to increase the aggregate principal amount of the Notes Outstanding in compliance with the
procedures set forth in the Original Indenture, including Section 301 and Section 303 thereof, so
long as any such additional Notes have the same tenor and terms (including, without limitation,
rights to receive accrued and unpaid interest) as the Notes then Outstanding. No additional Notes
may be issued if an Event of Default has occurred. The Notes shall be issuable only in fully
registered form and, as permitted by Section 301 and Section 302 of the Original Indenture, in
denominations of [$1,000] and integral multiples thereof. The Notes will initially be issued in
global form (the “Global Notes”) under a book-entry system, registered in the name of The
Depository Trust Company, as depository (“DTC”), or its nominee, which is hereby designated as
“U.S. Depositary” and “Depositary” under the Original Indenture.



     (b) Further to Section 305 of the Original Indenture, any Global Note shall be exchangeable
for Notes registered in the name of, and a transfer of a Global Note of any series may be
registered to, any Person other than the Depositary for such Note or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such
Global Note or if at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either such case, the Company does not appoint a successor Depositary within
90 days thereafter, (ii) the Company executes and delivers to the Trustee a Company Order that such
Global Note shall be so exchangeable and the transfer thereof so registrable or (iii) there shall
have occurred and be continuing an Event of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to the Notes of such
series. Upon the occurrence in respect of any Global Note of any series of any or more of the
conditions specified in clause (i), (ii) or (iii) of the preceding sentence, such Global Note may
be exchanged for Notes registered in the name of, and the transfer of such Global Note may be
registered to, such Persons (including Persons other than the Depositary with respect to such
series and its nominees) as such Depositary, in the case of an exchange, and the Company, in the
case of a transfer, shall direct.



     [Insert in connection with issuance of Trust Preferred Securities] [In connection with a
Dissolution Event,



          (i) the Notes in certificated form may be presented to the Trustee by the Property Trustee in
exchange for a global Note in an aggregate principal amount equal to the aggregate principal amount
of all outstanding Notes (a “Global Note”), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Administrative Trustees. The Company upon any
such presentation shall execute a Global Note in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance with the Original Indenture and
this Supplemental Indenture. Payments on the Notes issued as a Global Note will be made to the
Depositary; and



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          (ii) if any Trust Preferred Securities are held in non book-entry certificated form, the Notes
in certificated form may be presented to the Trustee by the Property Trustee and any Trust
Preferred Security Certificate which represents Trust Preferred Securities other than Trust
Preferred Securities held by the Depositary or its nominee (“Non Book-Entry Trust Preferred
Securities”) will be deemed to represent beneficial interests in Notes presented to the Trustee by
the Property Trustee having an aggregate principal amount equal to the aggregate liquidation amount
of the Non Book-Entry Trust Preferred Securities until such Trust Preferred Security Certificates
represented to the Security Registrar for transfer or reissuance, at which time such Trust
Preferred Security Certificates will be canceled and a Note, registered in the name of the holder
of the Trust Preferred Security Certificate or the transferee of the holder of such Trust Preferred
Security Certificate, as the case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Trust Preferred Security Certificate canceled, will be executed by the
Company and delivered to the Trustee for authentication and delivery in accordance with the
Original Indenture and this Supplemental Indenture. On issue of such Notes, Notes with an
equivalent aggregate principal amount that were presented by the Property Trustee to the Trustee
will be deemed to have been canceled.]




     SECTION 205. Terms of the Notes.



     (a) [The Notes shall bear interest at the rate of         % per annum on the principal amount
thereof from the date of issuance or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, until the principal of the Notes becomes due and payable, and
on any overdue principal and premium and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the same rate per annum
during such overdue period. Interest on this Note will be payable [semiannually][quarterly] in
arrears on                     [,                     ,                     ] and
                     of each year (each such date, an “Interest Payment Date”), commencing
                                 .] [The amount of interest payable for any period shall be
computed on the basis of [twelve 30-day months and a 360-day year][a 360-day year and the actual
number of days elapsed in such period] [the actual number of days in the year] and, for any period
shorter than a full [semiannual][quarterly] interest period, will be computed on the basis of the
actual number of days elapsed in such period.]



          [If the Notes are not to bear interest prior to Stated Maturity, insert] [The principal of the
Notes shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of [yield to maturity] % per annum (to the extent
that the payment of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal or premium shall be payable on demand. Any such interest
on any overdue



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principal or premium that is not so paid on demand shall bear interest at the rate of [yield
to maturity] % per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also be payable on
demand.]




     (b) In the event that any Interest Payment Date, redemption date or other date of Maturity of
the Notes is not a Business Day, then payment of the amount payable on such date will be made on
the next succeeding day which is a Business Day [(and without any interest or other payment in
respect of any such delay),] [except that, if such Business Day is in the next succeeding calendar
[year][month], such payment shall be made on the immediately preceding Business Day] [without
reduction in the amount due to such early payment], in each case with the same force and effect as
if made on such date.] The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date with respect to any Note will, as provided in the Original
Indenture, be paid to the person in whose name the Note (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the relevant record date for
such interest installment, which shall be the [fifteenth calendar day (whether or not a Business
Day)] prior to the relevant Interest Payment Date (the “Regular Record Date”). Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Regular Record Date, and may either be paid to the person in whose name
the Note (or one or more Predecessor Securities) is registered at the close of business on a
Special Record Date to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of this series of Notes not less than ten days
prior to such Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided in the Original
Indenture. The principal of [, and premium, if any,] and the interest on the Notes shall be
payable at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in any coin or currency of the United States of America which at
the time of payment is legal tender for payment of public and private debts; provided, however,
that payment of interest may be made at the option of the Company by check mailed to the registered
Holder at the close of business on the Regular Record Date at such address as shall appear in the
Security Register.]



     [Alternate provisions in connection with issuance of Trust Preferred Securities] [Each Note
will bear interest at the rate of              % per annum (the “Coupon Rate”) from the original date of
issuance until the principal thereof becomes due and payable, and on any overdue principal and, to
the extent that payment of such interest is enforceable under applicable law, on any overdue
installment of interest at the Coupon Rate, compounded quarterly, payable quarterly in arrears on
                         ,                          ,         and        of each
year (each, an “Interest Payment Date”), commencing on              , to the
Person in whose name such Note or any predecessor Note is registered at the close of business on
the relevant record date, which will be, as long as the Trust Preferred Securities remain in
book-entry form (or if no Trust



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Preferred Securities remain outstanding, as long as the Notes remain in book entry form), one
Business Day prior to the relevant Interest Payment Date and, in the event the Trust Preferred
Securities are not in book-entry form (or if no Trust Preferred Securities remain outstanding, in
the event the Notes are not in book entry form), the 15th calendar day, whether or not a Business
Day, preceding the applicable Interest Payment Date.



     The amount of interest payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months. Except as provided in the following sentence, the amount of interest
payable for any period shorter than a full quarterly period for which interest is computed, will be
computed on the basis of the actual number of days elapsed per calendar month (but not to exceed 30
days in any month). In the event that any date on which interest is payable on the Notes is not a
Business Day, then payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force and effect as if
made on the date that such interest otherwise would have been payable.



     [In addition to any right of Direct Action granted under Section 3.8(e) of the Trust Agreement
to the holders of Trust Preferred Securities, if the Property Trustee fails to enforce its rights
under the Trust Agreement or the Indenture to the fullest extent permitted by law and subject to
the terms of the Trust Agreement and the Indenture, then a holder of Trust Preferred Securities may
directly institute a proceeding against the Company to enforce the Property Trustee’s rights under
the Trust Agreement or the Indenture without first instituting a legal proceeding against the
Property Trustee or any other person.]]



     (c) [Insert for Original Issue Discount Notes] [If an Event of Default with respect to Notes
of this series shall occur and be continuing, an amount of principal of the Notes of this series
(the “Acceleration Amount”) may be declared due and payable in the manner and with the effect
provided in the Original Indenture. In case of a declaration of acceleration on or before
      and on       in any year, the Acceleration Amount per     
                     principal amount at Stated Maturity of the Notes shall be equal to the amount
set forth in respect of such date below:



	 	 	 
	 	 	 	 	Acceleration Amount
	Date of Acceleration	 	per principal amount of Stated Maturity




and in case of a declaration of acceleration on any other date, the Acceleration Amount shall be
equal to the Acceleration Amount as of the next preceding date set forth in the table above, plus
accrued original issue discount (computed in accordance with the




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method used for calculating the amount of original issue discount that accrues for U.S. Federal
income tax purposes) from such next preceding date to the date of declaration at the yield to
maturity. For the purpose of this computation the yield to maturity is         %. Upon payment
(i) of the Acceleration Amount so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company’s obligations in respect of the payment of the
principal of and interest, if any, on the Notes of this series shall terminate.




     (d) [Insert for convertible/exchangeable Notes] [The Company shall maintain an office or
agency where Notes may be presented for conversion (“Conversion Agent”). The Company may have one
or more additional conversion agents.



          The Company shall enter into an appropriate agency agreement with any Conversion Agent (other
than the Trustee). The agreement shall implement the provisions of the Indenture and this
Supplemental Indenture that relate to such agent. The Company shall notify the Trustee of the name
and address of any such agent. If the Company fails to maintain a Conversion Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section
606 of the Original Indenture. The Company or any Subsidiary or an Affiliate of either of them may
act as Conversion Agent.




     The Company initially appoints the Trustee as Conversion Agent in connection with the Notes.]



     (e) Maturity, [conversion,] [purchase by the Company at the option of the Holder] or
redemption of a Note shall cause interest to cease to accrue on such Note subject to the Company’s
obligation to pay interest on overdue amounts in accordance with Section 503 of the Original
Indenture and the terms of the Notes.



     (f) [Insert in connection with issuance of Trust Preferred Securities] [The following shall be
additional covenants of the Company with respect to the Notes:



          (i) So long as no Event of Default has occurred and is continuing, in the event that (A) the
Trust is the holder of all of the Outstanding Notes, (B) a Tax Event in respect of the Trust shall
have occurred and be continuing and (iii) the Company shall not have (a) redeemed the Notes or (b)
terminated the Trust pursuant to the termination provisions of the related Trust Agreement, the
Company shall pay to the Trust (and any permitted successor or assign under the related Trust
Agreement) for so long as the Trust (or its permitted successor or assignee) is the registered
holder of any Notes, such additional amounts as may be necessary in order that the amount of
Distributions then due and payable by the Trust on the related Trust Preferred Securities and
Common Securities that at any time remain outstanding in accordance with the terms thereof shall
not be reduced as a result of any additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of such Tax Event (but not including withholding taxes
imposed on holders of such Trust Preferred Securities and Common



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Securities) (the “Additional Interest”). Whenever in the Indenture or the Notes there is a
reference in any context to the payment of principal of or interest on the Notes, such reference
shall be deemed to include payment of the Additional Interest provided for in this paragraph to the
extent that, in such context, Additional Interest is, were or would be payable in respect thereof
pursuant to the provisions of this Section and express reference to the payment of Additional
Interest (if applicable) in any provisions hereof shall not be construed as excluding Additional
Interest in those provisions hereof where such express reference is not made.




          (ii) The Company also covenants with each holder of Notes (A) to maintain directly or
indirectly 100% ownership of the Common Securities of the Trust; provided, however, that any
permitted successor or assignee of the Company hereunder may succeed to the Company’s ownership of
such Common Securities, (B) not to voluntarily terminate, wind up or liquidate the Trust, except
(x) in connection with a prepayment in full of the Notes or a distribution of the Notes of such
series to the holders of Trust Preferred Securities in liquidation of the Trust or (y) in
connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement
and (iii) to use its reasonable efforts, consistent with the terms and provisions of the Trust
Agreement, to cause such Trust to remain classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes.]




     (g) [The Company shall have the right to (i) shorten the Stated Maturity of the principal of
the Notes at any time to any date not earlier than the first date on which the Company has the
right, if any, to redeem the Notes, and (ii) extend the Stated Maturity of the principal of the
Notes at any time at its election for one or more periods, but in no event to a date later than the
[49th] anniversary of the first interest payment date following the original issue date of the
Notes; provided that, if the Company elects to exercise its right to extend the Stated Maturity of
the principal of the Notes pursuant to this clause (ii), at the time such election is made and at
the time of extension (A) the Company is not in bankruptcy, otherwise insolvent or in liquidation,
(B) the Company is not in default in the payment of any interest or principal on the Notes, (C) the
Trust is not in arrears on payments of Distributions on the Trust Preferred Securities issued by
the Trust, and (D) the Notes are rated not less than BBB- by Standard & Poor’s Ratings Services or
Baa3 by Moody’s Investors Service, Inc. or the equivalent by any other nationally recognized
statistical rating organization. In the event the Company elects to shorten or extend the Stated
Maturity of the Notes, it shall give notice to the Trustee (not less than 45 days prior to the
effectiveness thereof), and the Trustee shall give notice of such shortening or extension to the
holders not less than 30 nor more than 60 days prior to the effectiveness thereof.]



     (h) [Each Note issued hereunder shall provide that the Company and, by its acceptance of a
Note or a beneficial interest therein, the holder of, and any Person that acquires a beneficial
interest in, such Note agree that for United States federal, state and local tax purposes it is
intended that such Note constitute indebtedness.]



13









 





     (i) The Notes shall have such other terms and provisions as are set forth in the form of Note
attached hereto as Exhibit A (all of which are incorporated by reference in and made a part of this
Supplemental Indenture as if set forth in full at this place).



     SECTION 206. Form of Notes. Attached hereto as Exhibit A is a form of the Notes.



ARTICLE THREE




REDEMPTION OF THE NOTES




     SECTION 301. Optional Redemption.



     [[Except as provided in Articles Seven and Eight hereof] [t]The Notes are not subject to
repayment at the option of the Holders thereof.] [[Except as provided in the form of Note attached
hereto as Exhibit A,] [T][t]he Notes are not redeemable by the Company prior to maturity.]



     [Insert in connection with the issuance of Trust Preferred Securities] [The Notes are
prepayable prior to the Stated Maturity at the option of the Company (i) in whole or in part, from
time to time, or after                                or (ii) at any time prior to
                               , in whole but not in part, within 180 days following the occurrence
of a Special Event, in either case at a prepayment price (the “Prepayment Price”) equal to
                        , plus accrued and unpaid interest thereon (including Additional Interest
and Compound Interest, if any) to the date of prepayment.



     SECTION 302. Redemption Procedures.



     Notice of any redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be prepaid at its registered address. Unless the
Company defaults in payment of the [Prepayment Price,] on and after the Redemption Date interest
shall cease to accrue on such Notes called for redemption. If the Notes are only partially
redeemed pursuant to Section 301, the Notes will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, that if at the time of redemption the Notes are
registered as a Global Note, the Depositary shall determine, in accordance with its procedures, the
principal amount of such Notes held by each Depositary participant to be redeemed. The [Prepayment
Price] shall be paid prior to 12:00 noon, New York time, on the date of such prepayment or at such
earlier time as the Company determines; provided that the Company shall deposit with the Trustee an
amount sufficient to pay the [Prepayment Price] by 10:00 a.m., New York time, on the date such
[Prepayment Price] is to be paid.



     SECTION 303. [No Sinking Fund.



     The Notes are not entitled to the benefit of any sinking fund.]



14









 





[ARTICLE FOUR




EXPENSES




     [Insert in connection with issuance of Trust Preferred Securities]



     SECTION 401. Payment of Expenses.



     In connection with the offering, sale and issuance of the Notes to the Property Trustee and in
connection with the sale of the Trust Securities by the Trust, the Company, in its capacity as
borrower with respect to the Notes, shall:



     (a) pay all costs and expenses relating to the offering, sale and issuance of the Notes,
including commissions to the underwriter payable pursuant to the Underwriting Agreement and
compensation of the Trustee under the Indenture in accordance with the provisions of Section 606 of
the Original Indenture;



     (b) be responsible for and shall pay all debts and obligations (other than with respect to the
Trust Securities) and all costs and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization, maintenance and dissolution of the Trust, the offering, sale
and issuance of the Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses (including reasonable counsel fees and expenses) of the Property
Trustee, the Delaware Trustee and the Administrative Trustees (including any amounts payable under
Article 10 of the Agreement), the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets and the enforcement by the Property Trustee of the
rights of the holders of the Trust Preferred Securities);



     (c) be liable for any indemnification obligations arising with respect to the Agreement; and



     (d) pay any and all taxes (other than United States withholding taxes attributable to the
Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the
Trust.



     The Company’s obligations under this Section 401 shall be for the benefit of, and shall be
enforceable by, any Person to whom such debts, obligations, costs, expenses and taxes are owed (a
“Creditor”) whether or not such Creditor has received notice hereof. Any such Creditor may enforce
the Company’s obligations under this Section 401 directly against the Company and the Company
irrevocably waives any right of remedy to require that any such Creditor take any action against
the Trust or any other Person



15









 







before proceeding against the Company. The Company agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to the provisions of this
Section 401.



     The provisions of this Section shall survive the termination of this Supplemental Indenture.



     SECTION 402. Payment Upon Resignation or Removal.



     Upon termination of this Supplemental Indenture or the Indenture or the removal or resignation
of the Trustee, unless otherwise stated, the Company shall pay to the Trustee all amounts accrued
to the date of such termination, removal or resignation that are payable pursuant to Section 606 of
the Original Indenture. Upon termination of the Agreement or the removal or resignation of the
Delaware Trustee or the Property Trustee, as the case may be, pursuant to Section 5.6 of the
Agreement, the Company shall pay to the Delaware Trustee or the Property Trustee, as the case may
be, all amounts accrued to the date of such termination, removal or resignation.]



[ARTICLE FIVE




COVENANT TO LIST ON EXCHANGE




[Insert in connection with issuance of trust preferred securities]




     SECTION 501. Listing on an Exchange.



     If the Notes are distributed to the holders of the Securities issued by the Trust, and the
Trust Preferred Securities are then so listed, the Company will use its best efforts to list such
Notes on the New York Stock Exchange, Inc. or on such other exchange as the Trust Preferred
Securities are then listed.]



[ARTICLE SIX




CONVERSION




[Insert for convertible/exchangeable notes]




     SECTION 601. Conversion Rights.



     Notes shall be convertible in accordance with their terms and in accordance with this Article.



     The initial conversion rate (the “Conversion Rate”) is            shares of Common Stock per
$1,000 principal amount of Notes, subject to adjustment as a result of adjustments to the
Conversion Price upon the occurrence of certain events described in this Article. A Holder of a
Note otherwise entitled to a fractional share shall receive cash
in an amount equal to the value of such fractional share based on the Sale Price on the
Trading Day immediately preceding the Conversion Date.



16









 





     A Holder of Notes is not entitled to any rights of a holder of Common Stock until such Holder
has converted its Notes to Common Stock, and only to the extent such Notes are deemed to have been
converted into Common Stock pursuant to this Article.



     SECTION 602. Conversion Rights Based on Common Stock Price.



     The Holder of any Note shall have the right, exercisable at any time after the date of
original issuance of the Note and before the close of business on the Business Day immediately
preceding the Stated Maturity of the Notes, to convert the principal amount of the Note (or any
portion of it that is an integral multiple of $1,000) into shares of Common Stock at the Conversion
Price.



     The “Conversion Price” per share shall initially equal $       and shall be adjusted as
described in Section 609.



     SECTION 603. Conversion Rights Upon Notice of Redemption.



     In case a Note or portion thereof is called for redemption pursuant to Article Three hereof, a
Holder of such Note may surrender it for conversion at any time prior to the close of business on
the Business Day immediately preceding the Redemption Date for such Note, unless the Company shall
default in making the payment of the Redemption Price when due, in which case the conversion right
shall terminate at the close of business on the date such default is cured and such Redemption
Price is paid.



     SECTION 604. Conversion Rights Upon Occurrence of Certain Corporate Transactions.



     If the Company is a party to a consolidation, merger or binding share exchange pursuant to
which the shares of Common Stock would be converted into cash, securities or other property, at the
effective time of the transaction, the right to convert a Note into shares of Common Stock shall be
changed into a right to convert such Note, without the consent of any Holders of the Notes, into
the kind and amount of cash, securities or other property of the Company or another Person which
the Holder would have received if the Holder had converted such Note immediately prior to the
transaction.



     SECTION 605. Conversion Procedures.



     To convert a Note, a Holder must (a) complete and manually sign the conversion notice (the
“Conversion Notice”) or a facsimile thereof on the back of the Note and deliver such notice to a
Conversion Agent, (b) surrender the Note to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by the Security Registrar or a Conversion Agent and
(d) pay any transfer or similar tax, if required. The date on which the Holder satisfies all of
those requirements is the “Conversion Date.”



17









 







The Company shall deliver to the Holder through the Conversion Agent, as soon as practicable
but in any event no later than the fifth Business Day following the Conversion Date, a certificate
for the number of whole shares of Common Stock issuable upon the conversion and cash in lieu of any
fractional shares pursuant to Section 606. Anything herein to the contrary notwithstanding, in the
case of Global Notes, conversion notices may be delivered and such Notes may be surrendered for
conversion in accordance with the Applicable Procedures of the Depositary as in effect from time to
time. The Person in whose name the Common Stock certificate is registered shall be deemed to be a
shareholder of record on the Conversion Date; provided, however, that no surrender of a Note on any
date when the stock transfer books of the Company are closed shall be effective to constitute the
Person or Persons entitled to receive the shares of Common Stock upon such conversion as the record
holder or holders of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the Person or Persons entitled to receive such shares of Common Stock as
the record holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; provided further, however, that such
conversion shall be at the Conversion Rate in effect on the date that such Note shall have been
surrendered for conversion, as if the stock transfer books of the Company had not been closed.
Upon conversion of a Note, such Person shall no longer be a Holder of such Note.



     No payment or adjustment shall be made for dividends on, or other distributions with respect
to, any Common Stock except as provided in this Article. On conversion of a Note, except as
provided below in the case of certain Notes or portions thereof called for redemption, that portion
of accrued and unpaid interest on the converted Note attributable to the period from the most
recent Interest Payment Date (or, if no Interest Payment Date has occurred, from the date of
original issuance of the Notes) through the Conversion Date attributable to the most recent accrual
date with respect to the converted Note shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through delivery of the Common
Stock (together with the cash payment, if any, in lieu of fractional shares), and the fair market
value of such shares of Common Stock (together with any such cash payment in lieu of fractional
shares) shall be treated as issued, to the extent thereof, first in exchange for accrued and unpaid
interest through the Conversion Date and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment) shall be treated as issued in exchange for the principal
amount of the Note being converted pursuant to the provisions hereof.



     If a Holder converts more than one Note at the same time, the number of shares of Common Stock
issuable upon the conversion shall be based on the aggregate principal amount of Notes converted.



     Upon surrender of a Note that is converted in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder, a new Note equal in principal amount to the principal
amount of the unconverted portion of the Note surrendered.



18









 





     Notes or portions thereof surrendered for conversion during the period from the close of
business on any Regular Record Date immediately preceding any Interest Payment Date to the opening
of business on such Interest Payment Date shall (except for Notes called for redemption pursuant to
Article Three hereof on a Redemption Date that occurs during the period between the close of
business on a Regular Record Date and the close of business on the Interest Payment Date to which
such Regular Record Date relates) be accompanied by payment to the Company or its order, in New
York Clearing House funds or other funds acceptable to the Company, of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of Notes or portions thereof
being surrendered for conversion.



     SECTION 606. Fractional Shares.



     The Company shall not issue a fractional share of Common Stock upon conversion of a Note.
Instead, the Company will deliver cash for the current market value of the fractional share. The
current market value of a fractional share of Common Stock shall be determined, to the nearest
1/1,000th of a share, by multiplying the Sale Price on the Trading Day immediately prior to the
Conversion Date, of a full share of Common Stock by the fractional amount and rounding the product
to the nearest whole cent.



     SECTION 607. Taxes on Conversion.



     If a Holder converts a Note, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon such conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the shares to be issued in a name
other than the Holder’s name. The Conversion Agent may refuse to deliver the certificate
representing the Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due because the shares are
to be issued in a name other than the Holder’s name. Nothing herein shall preclude any tax
withholding required by law or regulation.



     SECTION 608. Company to Provide Common Stock.



     The Company shall, prior to issuance of any Notes under this Supplemental Indenture, and from
time to time as may be necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all Notes Outstanding into
shares of Common Stock. All shares of Common Stock delivered upon conversion of the Notes shall be
newly issued shares, shall be duly authorized, validly issued, fully paid and nonassessable and
shall be free from preemptive rights and free of any Lien or adverse claim.



     The Company shall endeavor promptly to comply with all federal and state securities laws
regulating the registration of the offer and delivery of shares of Common Stock to a converting
Holder upon conversion of Notes, if any, and shall list or cause to



19









 







have quoted such shares of Common Stock on each national securities exchange or other
over-the-counter market or such other market on which the Common Stock is then listed or quoted.



     SECTION 609. Adjustment of Conversion Price.



     The Conversion Price shall be adjusted from time to time by the Company as follows:



     (a) In case the Company (i) issues shares of Common Stock as a dividend or distribution on its
Common Stock, (ii) subdivides its outstanding Common Stock into a greater number of shares, or
(iii) combines its outstanding Common Stock into a smaller number of shares, the Conversion Price
in effect immediately prior thereto shall be adjusted so that the Holder of any Notes thereafter
surrendered for conversion shall be entitled to receive that number of shares of Common Stock which
it would have owned had such Notes been converted immediately prior to the happening of such event.
An adjustment made pursuant to this subsection (a) shall become effective immediately after the
record date in the case of a dividend or distribution and shall become effective immediately after
the effective date in the case of subdivision or combination.



     (b) In case the Company issues rights or warrants to all or substantially all holders of its
Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or having a conversion price per share) less
than the then Current Market Price per share of Common Stock on the record date for the
determination of shareholders entitled to receive such rights or warrants, the Conversion Price in
effect immediately prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares which the aggregate offering price of the total number of
shares of Common Stock so offered (or the aggregate conversion price of the convertible securities
so offered, which shall be determined by multiplying the number of shares of Common Stock issuable
upon conversion of such convertible securities by the conversion price per share of Common Stock
pursuant to the terms of such convertible securities) would purchase at the then Current Market
Price per share of Common Stock on such record date, and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the number of additional
shares of Common Stock offered (or into which the convertible securities so offered are
convertible). Such adjustment shall be made successively whenever any such rights or warrants are
issued, and shall become effective immediately after such record date. If at the end of the period
during which such rights or warrants are exercisable not all rights or warrants shall have been
exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been
based upon the number of additional shares of Common Stock actually issued (or the number of shares
of Common Stock issuable upon conversion of convertible securities actually issued).



20









 





     (c) In case the Company distributes to all or substantially all holders of its Common Stock
any shares of Capital Stock (other than dividends or distributions of Common Stock on Common Stock
to which Section 609(a) applies) of the Company, evidences of indebtedness or other assets
(including securities of any Person other than the Company, but excluding all-cash distributions or
any rights or warrants referred to in Section 609(b)), then in each such case the Conversion Price
shall be adjusted so that the same shall equal the price determined by multiplying the current
Conversion Price by a fraction of which the numerator shall be the then Current Market Price per
share of the Common Stock on the record date referred to below less the fair market value on such
record date (as determined by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officers’ Certificate
delivered to the Trustee) of the portion of the Capital Stock, evidences of indebtedness or other
non-cash assets so distributed applicable to one share of Common Stock (determined on the basis of
the number of shares of Common Stock outstanding on the record date) and of which the denominator
shall be the then Current Market Price per share of the Common Stock on such record date. Such
adjustment shall be made successively whenever any such distribution is made and shall become
effective immediately after the record date for the determination of shareholders entitled to
receive such distribution.



     In the event that the Company implements a shareholder rights plan, such rights plan may
provide, if the Company so elects and subject to customary exceptions and limitations, that upon
conversion of the Notes the Holders will receive, in addition to the Common Stock issuable upon
such conversion, the rights issued under such rights plan (notwithstanding the occurrence of an
event causing such rights to separate from the Common Stock at or prior to the time of conversion)
in lieu of making any adjustments to the Conversion Price in accordance with the provisions of the
immediately preceding paragraph. Any distribution of rights or warrants pursuant to a shareholder
rights plan complying with the requirements set forth in the immediately preceding sentence of this
paragraph shall not constitute a distribution of rights or warrants for the purposes of this
Section 609(c) or any other provision of this Section 609.



     (d)(1) In case the Company, by dividend or otherwise, at any time distributes (a “Triggering
Distribution”) to all holders of its Common Stock cash distributions in an aggregate amount that,
together with the aggregate amount of (A) any other cash distributions to all holders of Common
Stock within the 12 months preceding the date fixed for determining the stockholders entitled to
such Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to
this Section 609 has been made and (B) all Excess Payments in respect of each tender offer by the
Company or any of its Subsidiaries for Common Stock concluded within the 12 months preceding the
date of payment of the Triggering Distribution and in respect of which no Conversion Price
adjustment pursuant to this Section 609 has been made, exceeds an amount equal to 15% of the
product of the Current Market Price per share of Common Stock on the date fixed for the
determination of stockholders entitled to receive such Triggering Distribution (the “Time of
Determination”) multiplied by the number of shares of Common Stock outstanding on such date
(excluding shares held in the treasury of the Company), the



21









 







Conversion Price shall be decreased so that the same shall equal the price determined by
multiplying such Conversion Price in effect immediately prior to the Time of Determination by a
fraction of which the numerator shall be the Current Market Price per share of Common Stock at the
Time of Determination less the sum of the aggregate amount of cash so distributed, paid or payable
within such 12 months (including, without limitation, the Triggering Distribution) applicable to
one share of Common Stock (determined on the basis of the number of shares of Common Stock
outstanding at the Time of Determination), and the denominator shall be such Current Market Price
per share of Common Stock on the Time of Determination, such decrease to become effective
immediately prior to the opening of business on the day following the date on which the Triggering
Distribution is paid.



     (2) In the case of the payment of an Excess Payment in respect of a tender offer by the
Company or any Subsidiary for Common Stock that, together with the aggregate amount of (A) any cash
distributions made within the 12 months preceding the date of the Expiration Date (as defined
below) and in respect of which no Conversion Price adjustment pursuant to this Section 609 has been
made and (B) all other Excess Payments in respect of each tender offer by the Company or any
Subsidiary for Common Stock concluded within the 12 months preceding the Expiration Date and in
respect of which no Conversion Price adjustment pursuant to this Section 609 has been made, exceeds
an amount equal to 15% of the product of the Current Market Price per share of Common Stock as of
the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer
(as it may be amended) (the last time at which such tenders could have been made on the Expiration
Date is hereinafter sometimes called the “Expiration Time”) multiplied by the number of shares of
Common Stock outstanding (including tendered shares but excluding any shares held in the treasury
of the Company) at the Expiration Time, then, immediately prior to the opening of business on the
day after the Expiration Date, the Conversion Price shall be decreased so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately prior to close of
business on the Expiration Date by a fraction of which the numerator shall be the product of the
number of shares of Common Stock outstanding (including tendered shares but excluding any shares
held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price
per share of Common Stock on the Trading Day next succeeding the Expiration Date, and the
denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable
to stockholders based on the acceptance (up to any maximum specified in the terms of the tender
offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y)
the product of the number of shares of Common Stock outstanding (less any Purchased Shares and
excluding any shares held in the treasury of the Company) at the Expiration Time and the Current
Market Price per share of Common Stock on the Trading Day next succeeding the Expiration Date, such
decrease to become effective immediately prior to the opening of business on the day following the
Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any
such tender offer, but the Company is permanently prevented by applicable law from effecting any or
all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be



22









 







adjusted to be the Conversion Price which would have been in effect based upon the number of
shares actually purchased. If the application of this Section 609(d)(2) to any tender offer would
result in an increase in the Conversion Price, no adjustment shall be made for such tender offer
under this Section 609(d)(2).



     (3) For purposes of this Section 609(d), the term “tender offer” shall mean and include both
tender offers and exchange offers, all references to “purchases” of shares in tender offers (and
all similar references) shall mean and include both the purchase of shares in tender offers and the
acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all
similar references) shall mean and include shares tendered in both tender offers and exchange
offers.



     (e) [reserved]



     (f) In any case in which this Section 609 requires that an adjustment be made following a
record date or a Time of Determination or Expiration Date, as the case may be, established for
purposes of this Section 609, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate described in Section 612)
issuing to the Holder of any Notes converted after such record date or Time of Determination or
Expiration Date the shares of Common Stock and other Capital Stock of the Company issuable upon
such conversion over and above the shares of Common Stock and other Capital Stock of the Company
issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and,
in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its
transfer agents to issue due bills or other appropriate evidence prepared by the Company of the
right to receive such shares. If any distribution in respect of which an adjustment to the
Conversion Price is required to be made as of the record date or Time of Determination or
Expiration Date therefor is not thereafter made or paid by the Company for any reason, the
Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such
record date had not been fixed or such effective date or Time of Determination or Expiration Date
had not occurred.



     (g) Upon adjustment of the Conversion Price pursuant to this Section 609, the Conversion Price
shall be rounded to the nearest $.001, with $.0005 being rounded upward.



     (h) Upon the election by the Company to make a distribution as described in paragraphs (b),
(c) and (d) of this Section 609, which in the case of paragraph (d) has a per share value equal to
more than 15% of the Sale Price of shares of Common Stock on the Trading Day preceding the
Agreement date for such distribution, the Company shall give notice to Holders of the Notes not
less than 20 days prior to the ex-dividend date for such distribution. Upon giving such notice,
Holders may surrender the Notes for conversion pursuant to this Article Six at any time until the
close of business on the Business Day prior to the ex-dividend date or until the Company publicly
announces that such distribution will not be given effect.



23









 





     SECTION 610. No Adjustment.



     No adjustment in the Conversion Price shall be required unless the adjustment would require an
increase or decrease of at least 1% in the Conversion Price as last adjusted; provided, however,
that any adjustments which by reason of this Section 610 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All calculations under this
Section 610 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may
be.



     Except pursuant to Section 614, no adjustment in the Conversion Price shall be made by reason
of the completion of a merger, consolidation or other transaction effected with one of the
Company’s Affiliates for the purpose of (1) changing the jurisdiction of organization of the
Company or (2) effecting a corporate reorganization including, without limitation, the
implementation of a holding company structure.



     No adjustment need be made for issuances of Common Stock pursuant to a Company plan for
reinvestment of dividends or interest or for a change in the par value or a change to no par value
of the Common Stock.



     SECTION 611. Adjustment for Tax Purposes.



     The Company shall be entitled to make such adjustments in the Conversion Price, in addition to
those required by Section 609, as in its discretion shall determine to be advisable in order that
any stock dividends, subdivisions of shares, distributions of rights to purchase stock or
securities or distributions of securities convertible into or exchangeable for stock hereafter made
by the Company to its stockholders shall not be taxable to the recipient thereof.



     SECTION 612. Notice of Adjustment.



     Whenever the Conversion Price is adjusted, the Company shall promptly mail to Holders a notice
of the adjustment and file with the Trustee an Officers’ Certificate specifying the adjusted
Conversion Price, and briefly stating the facts requiring the adjustment and the manner of
computing it.



     SECTION 613. Notice of Certain Transactions.



     In the event that:



     (1) the Company takes any action which would require an adjustment in the Conversion Price,



     (2) the Company takes any action that requires a supplemental indenture pursuant to Section
614, or



     (3) there is a dissolution or liquidation of the Company,



24









 







the Company shall mail to Holders and file with the Trustee a notice stating the proposed record or
effective date, as the case may be. The Company shall mail the notice at least fifteen days before
such date. Failure to mail such notice or any defect therein shall not affect the validity of any
transaction referred to in clause (1), (2) or (3) of this Section 613.



     SECTION 614. Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege.



     If any of the following shall occur, namely: (a) any reclassification or change of shares of
Common Stock issuable upon conversion of the Notes (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a subdivision or
combination); (b) any consolidation or merger in which the Company is a party consolidating with
another entity or merging with or into another entity other than a merger in which the Company is
the continuing corporation and which does not result in any reclassification of, or change (other
than a change in par value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination) in, Outstanding shares of Common Stock; or (c) any
sale or conveyance of all or substantially all of the property and assets of the Company to any
Person, then the Company, or such successor, purchasing or transferee corporation, as the case may
be, shall, as a condition precedent to such reclassification, change, consolidation, merger, sale
or conveyance, execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Note then Outstanding shall have the right to convert such Note into the kind and
amount of shares of stock and other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock deliverable upon conversion of such Note immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such supplemental indenture
shall provide for adjustments of the Conversion Price which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Price provided for in this Article. If, in the
case of any such consolidation, merger, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock include shares of stock
or other securities and property of a Person other than the successor, purchasing or transferee
corporation, as the case may be, in such consolidation, merger, sale or conveyance, then such
supplemental indenture shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Holders of the Notes as the Board of
Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this
Section 614 shall similarly apply to successive reclassifications, changes, consolidations,
mergers, sales or conveyances.



     In the event the Company shall execute a supplemental indenture pursuant to this Section 614,
the Company shall promptly file with the Trustee (x) an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or other securities or property (including
cash) receivable by Holders of the Notes upon the



25









 







conversion of their Notes after any such reclassification, change, consolidation, merger, sale
or conveyance, any adjustment to be made with respect thereto and that all conditions precedent
have been complied with and (y) an Opinion of Counsel that all conditions precedent have been
complied with, and shall promptly mail notice thereof to all Holders.



     SECTION 615. Trustee’s Disclaimer.



     The Trustee shall have no duty to determine when an adjustment under this Article should be
made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be protected in relying
upon, an Officers’ Certificate including the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 612. The Trustee makes no
representation as to the validity or value of any securities or assets issued upon conversion of
Notes, and the Trustee shall not be responsible for the Company’s failure to comply with any
provisions of this Article.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 614, but may accept
as conclusive evidence of the correctness thereof, and shall be fully protected in relying upon,
the Officers’ Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 614.



     SECTION 616. Voluntary Decrease.



     The Company may decrease the Conversion Price for any period of at least 20 days, upon at
least 15 days notice, if the Board of Directors determines that such decrease would be in the
Company’s best interests. Such determination by the Board of Directors shall be conclusive.]



[ARTICLE SEVEN




PURCHASE OF NOTES AT OPTION OF THE HOLDER




     SECTION 701. General.



     The Company shall be required to purchase Notes in accordance with this Article Seven.



     On each Purchase Date, the Company shall repurchase, at the option of the Holder, the Notes in
respect of which such Holder has provided and not withdrawn a Purchase Notice at the Purchase Price
upon:



     (1) delivery to the Paying Agent, by the Holder of a written notice of purchase (a “Purchase
Notice”) at any time from the opening of business on the date that is 20
Business Days prior to a Purchase Date until the close of business on the Business Day
immediately preceding such Purchase Date stating:



26









 





          (A) if a Certificated Security has been issued, the certificate number of the Note which the
Holder shall deliver to be purchased or if a Certificated Security has not been issued, such
information as may be required by Applicable Procedures;




          (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an
integral multiple of $1,000;




          (C) that such Note shall be purchased as of the Purchase Date pursuant to the terms and
conditions specified in the Notes and in the Indenture as supplemented by this Supplemental
Indenture; and




          (D) in the event that the Company elects, pursuant to Section 702 hereof, to pay the Purchase
Price to be paid as of such Purchase Date, in whole or in part, in Common Stock but such portion of
the Purchase Price shall ultimately be payable to such Holder entirely in cash because any of the
conditions to payment of the Purchase Price in Common Stock is not satisfied prior to the close of
business on such Purchase Date, as set forth in Section 704 hereof, whether such Holder elects (i)
to withdraw such Purchase Notice as to some or all of the Notes to which such Purchase Notice
relates (stating the principal amount and certificate numbers of the Notes as to which such
withdrawal shall relate), or (ii) to receive cash in respect of the entire Purchase Price for all
Notes (or portions thereof) to which such Purchase Price relates; and




     (2) delivery of such Notes to the Paying Agent at any time from the opening of business on the
date that is 20 Business Days prior to the Purchase Date until the close of business on the
Business Day immediately preceding such Purchase Date (together with all necessary endorsements) at
the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the
Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to
this Article only if the Notes so delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Purchase Notice.



     If a Holder, in such Holder’s Purchase Notice and in any written notice of withdrawal
delivered by such Holder pursuant to the terms of Section 709 hereof, fails to indicate such
Holder’s choice with respect to the election set forth in clause (D) of Section 701(1), such Holder
shall be deemed to have elected to receive cash in respect of the Purchase Price for all Notes
subject to the Purchase Notice in the circumstances set forth in such clause (D).



     The Company shall purchase from the Holder thereof, pursuant to this Article, a portion of a
Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.



27









 





     Any purchase by the Company contemplated pursuant to the provisions of this Article shall be
consummated by the delivery of the consideration to be received by the Holder (if any) promptly
following the later of the Purchase Date and the time of delivery of the Note.



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Purchase Notice contemplated by this Section 701 shall have the right to withdraw such Purchase
Notice at any time prior to the close of business on the Business Day immediately preceding the
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with
Section 709.



     The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice
or written notice of withdrawal thereof.



     SECTION 702. The Company’s Right to Elect Manner of Payment of Purchase Price.



     The Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 701 has
been given, or a specified percentage thereof, shall be paid by the Company, at the election of the
Company, with cash or Common Stock or in any combination of cash and Common Stock, subject to the
conditions set forth in Section 702 and 703 hereof. The Company shall specify, in the Company
Notice delivered pursuant to Section 705 hereof, whether the Company will purchase the Notes for
cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes
in respect of which it shall pay in cash and Common Stock; provided, however, that the Company
shall pay cash for fractional interests in Common Stock. For purposes of determining the existence
of potential fractional interests, all Notes subject to purchase by the Company held by a Holder
shall be considered together (no matter how many separate certificates are to be presented). Each
Holder whose Notes are purchased pursuant to this Article shall receive the same percentage of cash
or Common Stock in payment of the Purchase Price for such Notes, except (i) as provided in Section
704 with regard to the payment of cash in lieu of fractional shares of Common Stock and (ii) in the
event that the Company is unable to purchase the Notes of a Holder or Holders for Common Stock
because any necessary qualifications or registrations of the Common Stock under applicable state
securities laws cannot be obtained, the Company may purchase the Notes of such Holder or Holders
for cash. The Company may not change its election with respect to the consideration (or components
or percentages of components thereof) to be paid once the Company has given its Company Notice to
Holders except pursuant to Section 704 in the event of a failure to satisfy, prior to the close of
business on the Purchase Date, any condition to the payment of the Purchase Price, in whole or in
part, in Common Stock.



28









 





     At least three Business Days before the Company Notice Date, the Company shall deliver an
Officers’ Certificate to the Trustee specifying:



     (i) the manner of payment selected by the Company;



     (ii) the information required by Section 705;



     (iii) if the Company elects to pay the Purchase Price, or a specified percentage thereof, in
Common Stock, that the conditions to such manner of payment set forth in Section 704 have been or
shall be complied with; and



     (iv) whether the Company desires the Trustee to give the Company Notice required by Section
705.



     SECTION 703. Purchase with Cash.



     On each Purchase Date, at the option of the Company, the Purchase Price of Notes in respect of
which a Purchase Notice pursuant to Section 701 has been given, or a specified percentage thereof,
may be paid by the Company with cash equal to the aggregate Purchase Price of such Notes.



     SECTION 704. Payment by Issuance of Common Stock.



     On each Purchase Date, at the option of the Company, the Purchase Price of Notes in respect of
which a Purchase Notice pursuant to Section 701 has been given, or a specified percentage thereof,
may be paid by the Company by the issuance of a number of shares of Common Stock equal to the
quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled
had the Company elected to pay all or such specified percentage, as the case may be, of the
Purchase Price of such Notes in cash by (ii) 95% of the Market Price of a share of Common Stock,
subject to the next succeeding paragraph.



     The Company will not issue a fractional share of Common Stock in payment of the Purchase
Price. Instead the Company will pay cash for the current market value of the fractional share.
The current market value of a fraction of a share of Common Stock shall be determined by
multiplying the Market Price by such fraction and rounding the product to the nearest whole cent
with one half cent being rounded upwards. It is understood that if a Holder elects to have more
than one Note purchased, the number of shares of Common Stock shall be based on the aggregate
amount of Notes to be purchased.



     Upon determination of the actual number of shares of Common Stock issuable in accordance with
the provisions of this Section 704, the Company shall publish such information in The Wall Street
Journal or another daily newspaper of national circulation.



     The Company’s right to exercise its election to purchase the Notes pursuant to this Article
through the issuance of Common Stock shall be conditioned upon:



          (1) the Company not having given its Company Notice of an election to pay entirely in cash and
timely having given its Company Notice of an election to purchase all or a specified percentage of the
Notes with Common Stock as provided herein;




29









 








          (2) the listing of shares of Common Stock on the principal United States securities exchange
on which the Common Stock is then listed;




          (3) the registration of the shares of Common Stock to be issued in respect of the payment of
the Purchase Price under the Securities Act and the Exchange Act, in each case, if required for the
initial issuance thereof; and




          (4) any necessary qualification or registration under applicable state securities law or the
availability of an exemption from such qualification and registration.




     If the foregoing conditions are not satisfied with respect to a Holder or Holders prior to the
close of business on the Purchase Date and the Company has elected to purchase the Notes pursuant
to this Article through the issuance of Common Stock, the Company shall pay, without further
notice, the entire Purchase Price of the Notes of such Holder or Holders in cash.



     The “Market Price” means the average of the Sale Prices of the Common Stock for the twenty
Trading Day period ending on the third Business Day (if the third Business Day prior to the
applicable Purchase Date is a Trading Day, or if not, then on the last Trading Day prior to the
third Business Day) prior to the applicable Purchase Date appropriately adjusted to take into
account the occurrence, during the period commencing on the first of such Trading Days during such
five Trading Day period and ending on such Purchase Date, of any event described in Section 609;
subject, however, to the conditions set forth in Sections 609(f) and 610.



     The “Sale Price” of the Common Stock on any date means the closing per share sale price (or,
if no closing sale price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and average ask prices) on such date as reported in the
composite transactions for the principal United States securities exchange on which the Common
Stock is traded or, if the Common Stock is not listed on a United States national or regional
securities exchange, as reported by the National Quotation Bureau Incorporated.



     SECTION 705. Notice of Election.



     The Company shall provide notice (a “Company Notice”) on a date not less than 20 Business Days
prior to each Purchase Date (the “Company Notice Date”) to all Holders at their addresses shown in
the register of the Security Registrar, and to beneficial owners as required by applicable law,
stating:



     (1) whether the purchase price is payable in cash or Common Stock or in any combination
thereof, specifying the percentages of each;



30









 





     (2) if the Company has elected to pay the Purchase Price in Common Stock:



          (A) that each Holder shall receive Common Stock with a Market Price equal to such specified
percentage of the Purchase Price of the Notes held by such Holder (except any cash amount to be
paid in lieu of fractional shares);




          (B) the method of calculating the Market Price of the Common Stock; and




          (C) that because the Market Price of Common Stock will be determined prior to the Purchase
Date, Holders will bear the market risk with respect to the value of the Common Stock to be
received from the date such Market Price is determined to the Purchase Date.




     In any case, each Company Notice shall include a form of Purchase Notice to be completed by a
Holder and shall state:



     (A) the Purchase Price, the Conversion Rate and, to the extent known at the time of such
notice the amount of interest that will be accrued and payable with respect to the Notes as of the
Purchase Date;



     (B) the name and address of the Paying Agent and the Conversion Agent;



     (C) that Notes as to which a Purchase Notice has been given may be converted pursuant to
Article Six hereof only if the applicable Purchase Notice has been withdrawn in accordance with the
terms of this Supplemental Indenture;



     (D) that Notes must be surrendered to the Paying Agent to collect payment of the Purchase
Price;



     (E) that the Purchase Price for any Note as to which a Purchase Notice has been given and not
withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender
of such Note as described in (D);



     (F) the procedures the Holder must follow to exercise purchase rights under this Article and a
brief description of those rights;



     (G) a brief description of the conversion rights of the Notes; and



     (H) the procedures for withdrawing a Purchase Notice (including, without limitation, for a
conditional withdrawal pursuant to the terms of Section 701 or 709).



     If any of the Notes is in the form of a Global Note, then the Company shall modify the Company
Notice to the extent necessary to accord with the Applicable Procedures.



31









 





     At the Company’s request, the Trustee shall give such Company Notice in the Company’s name and
at the Company’s expense; provided, however, that, in all cases, the text of such Company Notice
shall be prepared by the Company.



     SECTION 706. Covenants of the Company.



     All Common Stock delivered upon purchase of the Notes shall be newly issued shares or treasury
shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free
from preemptive rights and free of any Lien or adverse claim.



     SECTION 707. Procedure upon Purchase.



     As soon as practicable after the Purchase Date, the Company shall deliver to each Holder
entitled to receive Common Stock through the Paying Agent, a certificate for the number of full
shares of Common Stock issuable in payment of the Purchase Price and cash in lieu of any fractional
shares of Common Stock. The Person in whose name the certificate for Common Stock is registered
shall be treated as a holder of record of Common Stock on the Business Day following the Purchase
Date. No payment or adjustment shall be made for dividends on the Common Stock the record date for
which occurred on or prior to the Purchase Date.



     SECTION 708. Taxes.



     If a Holder of a Note is paid in Common Stock, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on such issue of Common Stock. However, the Holder shall pay any
such tax which is due because the Holder requests the Common Stock to be issued in a name other
than the Holder’s name. The Paying Agent may refuse to deliver the certificates representing the
shares of Common Stock being issued in a name other than the Holder’s name until the Paying Agent
receives a sum sufficient to pay any tax which will be due because the shares of Common Stock are
to be issued in a name other than the Holder’s name.



     SECTION 709. Effect of Purchase Notice.



     Upon receipt by the Paying Agent of the Purchase Notice specified in Section 701, the Holder
of the Note in respect of which such Purchase Notice was given shall (unless such Purchase Notice
is withdrawn as specified in the following two paragraphs) thereafter be entitled to receive solely
the Purchase Price with respect to such Note. Such Purchase Price shall be paid to such Holder,
subject to receipt of funds and/or Common Stock by the Paying Agent, promptly following the later
of (x) the Purchase Date with respect to such Note (provided the conditions in Section 701 have
been satisfied) and (y) the time of delivery of such Note to the Paying Agent by the Holder thereof
in the manner required by Section 701. Notes in respect of which a Purchase Notice has been given
by the Holder thereof may not be converted pursuant to Article Six hereof on or
after the date of the delivery of such Purchase Notice unless such Purchase Notice has first
been validly withdrawn as specified in the following two paragraphs.



32









 





     A Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Purchase Notice at any time prior to the close of
business on the Business Day immediately preceding the applicable Purchase Date specifying:



     (1) if Certificated Securities have been issued, the certificate number of the Notes in
respect of which such notice of withdrawal is being submitted, or if Certificated Securities have
not been issued, such information as may be required by the Applicable Procedures;



     (2) the principal amount of the Notes, in integral multiples of $1,000, being withdrawn; and



     (3) the principal amount of such Notes that remains subject to the Purchase Notice, if any.



     A written notice of withdrawal of a Purchase Notice may be in the form set forth in the
preceding paragraph or may be in the form of (i) a conditional withdrawal contained in a Purchase
Notice pursuant to the terms of Section 701(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 701(l)(D) and the preceding paragraph and contained in a written
notice of withdrawal delivered to the Paying Agent as set forth in the preceding paragraph.



     There shall be no purchase of any Notes pursuant to this Article (other than through the
issuance of Common Stock in payment of the Purchase Price, including cash in lieu of fractional
shares) if there has occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Notes, of the required Purchase Notice) and is continuing an Event of Default
(other than a default in the payment of the Purchase Price with respect to such Notes). The Paying
Agent shall promptly return to the respective Holders thereof any Notes (x) with respect to which a
Purchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the Purchase Price with
respect to such Notes) in which case, upon such return, the Purchase Notice with respect thereto
shall be deemed to have been withdrawn.



     SECTION 710. Deposit of Purchase Price.



     Prior to 11:00 a.m. (New York City time) on the Purchase Date, the Company shall deposit with
the Trustee or with the Paying Agent an amount of cash (in immediately available funds if deposited
on such Business Day) and/or Common Stock, if permitted hereunder, sufficient to pay the aggregate
Purchase Price of all of the Notes or portions thereof which are to be purchased as of the Purchase
Date. The manner in which the deposit required by this Section 710 is made by the Company shall be
at the



33









 







option of the Company, provided, however, that such deposit shall be made in a manner such
that the Trustee or a Paying Agent shall have immediately available funds on the Purchase Date.



     If a Paying Agent holds, in accordance with the terms hereof, money and/or Common Stock
sufficient to pay the Purchase Price of any Note for which a Purchase Notice has been tendered and
not withdrawn in accordance with this Indenture then, immediately after such Purchase Date, such
Note shall cease to be Outstanding and the rights of the Holder in respect thereof shall terminate
(other than the right to receive the Purchase Price as aforesaid).



     SECTION 711. Securities Purchased in Part.



     Any Note which is to be purchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company or the Trustee duly executed by, the
Holder thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge
except for any taxes to be paid by the Holder in the event a Note is registered under a new name, a
new Note or Notes, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the portion of the principal amount of the Note so
surrendered which is not purchased.



     SECTION 712. Compliance with Securities Laws Upon Purchase of Securities.



     In connection with any offer to purchase or purchase of Notes under this Article (provided
that such offer or purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the Exchange Act at the time
of such offer or purchase), the Company shall (i) comply with Rule 13e-4 under the Exchange Act,
(ii) file the related Schedule TO (or any successor schedule, form or report), if required, under
the Exchange Act and (iii) otherwise comply with all applicable federal and state securities laws
so as to permit the rights and obligations under Article Seven to be exercised in the time and in
the manner specified in this Article.



     SECTION 713. Repayment to the Company.



     The Trustee and the Paying Agent shall return to the Company any cash or Common Stock that
remain unclaimed for two years, subject to applicable unclaimed property law, together with
interest or dividends, if any, thereon held by them for the payment of the Purchase Price,
provided, however, that to the extent that the aggregate amount of cash or Common Stock deposited
by the Company pursuant to Section 710 exceeds the aggregate Purchase Price of the Notes or
portions thereof which the Company is obligated to purchase as of the Purchase Date, then promptly
after the Business Day following the Purchase Date, the Trustee shall return any such excess to the



34









 







Company together with interest or dividends, if any, thereon. Thereafter, any Holder entitled
to payment must look to the Company for payment as general creditors, unless an applicable
abandoned property law designates another Person.]



[ARTICLE EIGHT




PURCHASE OF NOTES AT OPTION OF

THE HOLDER UPON FUNDAMENTAL CHANGE




     SECTION 801. Right to Require Purchase.



     (a) If a Fundamental Change occurs, Holders shall have the right, at their option, to require
the Company to Purchase all of such Holder’s Notes not previously called for redemption, or any
portion of the principal amount thereof, that is equal to $1,000 or an integral multiple of $1,000,
on the Fundamental Change Purchase Date.



     A “Fundamental Change” shall be deemed to have occurred at such time as (a) any Person,
including its Affiliates and associates, other than Permitted Holders, files a Schedule 13D or TO
(or any successor schedule, form or report under the Exchange Act) disclosing that such Person has
become the Beneficial Owner of 50% or more of the total voting power in the aggregate of all
classes the Company’s Capital Stock then outstanding normally entitled to vote in elections of the
Board of Directors, (b) there shall be consummated any consolidation or merger of the Company
pursuant to which the Common Stock would converted into cash, securities or other property, in each
case other than a consolidation or merger of the Company in which the holders of Common Stock
immediately prior to the consolidation or merger have, directly or indirectly, at least a majority
of the total voting power in the aggregate of all classes of Capital Stock of the continuing or
surviving corporation normally entitled to vote in elections of directors immediately after the
consolidation or merger or (c) the Company shall sell, convey, transfer or lease all or
substantially all of its properties and assets to any Person other than a Permitted Holder.



     The term “Beneficial Owner” shall be determined in accordance with Rules 13d-3 and 13d-5
promulgated by the Commission under the Exchange Act or any successor provision thereto, except
that a Person shall be deemed to have “beneficial ownership” of all shares that such Person has the
right to acquire, whether such right is exercisable immediately or only after the passage of time.



     The term “Permitted Holders” shall mean [(a) the Company and its Subsidiaries and employee
benefit plans, (b) any “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act) that includes                               ; provided that                            at all
times (i) holds the position of director of the Company, or another position of equal or greater
responsibilities, and the estates, executors and administrators, and parents and lineal descendants
of                           , and the estates, executors and administrators of any of such parents
and lineal descendants and (c) any corporation, partnership, limited liability company, trust or
other entity in which the trusts, individuals
or lineal descendents referred to in clause (b) in the aggregate have either a direct or
indirect beneficial interest or voting control of greater than 50%.]



35









 





     (b) Within fifteen Business Days following any Fundamental Change, the Company shall provide a
notice to all Holders at their addresses shown in the register of the Security Registrar, and to
beneficial owners as required by applicable law, and the Trustee offering to purchase the Notes on
a certain date (which date shall not be later than 35 Business Days from the date of such notice)
(the “Fundamental Change Purchase Date”) specified in such notice and such notice shall state:



          (1) the events giving rise to the Fundamental Change;




          (2) the date of such Fundamental Change;




          (3) the date by which the Fundamental Change Purchase Notice pursuant to this Section 801 must
be given;




          (4) the Fundamental Change Purchase Date;




          (5) the Fundamental Change Purchase Price that will be accrued and payable with respect to the
Notes as of the Fundamental Change Purchase Date;




          (6) briefly, the conversion rights of the Notes;




          (7) the name and address of the Paying Agent and Conversion Agent;




          (8) the Conversion Price and any adjustments thereto;




          (9) that Notes as to which a Fundamental Change Purchase Notice has been given may be
converted into Common Stock pursuant to Article Six only to the extent that the Fundamental Change
Purchase Notice has been withdrawn in accordance with the terms of this Indenture;




          (10) the procedures that the Holder must follow to exercise rights under this Section 801;




          (11) the procedures for withdrawing a Fundamental Change Purchase Notice, including a form of
notice of withdrawal; and




          (12) that the Holder must satisfy the requirements set forth in the Notes in order to convert
the Notes.




     If any of the Notes are in the form of a Global Note, then the Company shall modify such
notice to the extent required by the Applicable Procedures.



36









 





     (c) A Holder may exercise its rights specified in subsection (a) of this Section 801 upon
delivery of a written notice (which shall be in substantially the form included as an attachment to
the Notes and which may be delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of Global Notes, may be delivered
electronically or by other means in accordance with the Depository’s customary procedures) of the
exercise of such rights (a “Fundamental Change Purchase Notice”) to any Paying Agent for receipt by
such Paying Agent no later than the close of business on the fifth Business Day next preceding the
Fundamental Change Purchase Date.



     The delivery of such Note to any Paying Agent (together with all necessary endorsements) at
the office of such Paying Agent shall be a condition to the receipt by the Holder of the
Fundamental Change Purchase Price.



     The Company shall purchase from the Holder thereof, pursuant to this Section 801, a portion of
a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Supplemental Indenture that apply to the purchase of all of a Note pursuant to
Sections 801 through 806 also apply to the purchase of such portion of such Note.



     Any purchase by the Company contemplated pursuant to the provisions of this Section 801 shall
be consummated by the delivery of the consideration to be received by the Holder promptly following
the later of the Fundamental Change Purchase Date and the time of delivery of the Note to the
Paying Agent in accordance with this Section 801.



     Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the
Fundamental Change Purchase Notice contemplated by this subsection (c) shall have the right to
withdraw such Fundamental Change Purchase Notice in whole or as to a portion thereof that is a
principal amount of $1,000 or an integral multiple thereof at any time prior to the close of
business on the Business Day next preceding the Fundamental Change Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 802.



     A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Purchase Notice or written withdrawal thereof.



     In the case of Global Notes, any Fundamental Change Purchase Notice may be delivered or
withdrawn and such Notes may be surrendered or delivered for purchase in accordance with the
Applicable Procedures.



     (d) Anything herein to the contrary notwithstanding, the Company shall not be required to
effect a Fundamental Change Offer following a Fundamental Change if a third party makes the
Fundamental Change Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Article and purchases all of the Notes validly tendered and not
withdrawn under such Fundamental Change Offer.



37









 





     SECTION 802. Effect of Fundamental Change Purchase Notice.



     Upon receipt by any Paying Agent of the Fundamental Change Purchase Notice specified in
Section 801(c), the Holder of the Note in respect of which such Fundamental Change Purchase Notice
was given shall (unless such Fundamental Change Purchase Notice is withdrawn as specified below)
thereafter be entitled to receive on the Fundamental Change Purchase Date the Fundamental Change
Purchase Price with respect to such Note together with interest accrued to such Fundamental Change
Purchase Date. Such Fundamental Change Purchase Price shall be paid to such Holder promptly
following the later of (a) the Fundamental Change Purchase Date with respect to such Note (provided
the conditions in Section 801(c) have been satisfied) and (b) the time of delivery of such Note to
a Paying Agent by the Holder thereof in the manner required by Section 801(c). Notes in respect of
which a Fundamental Change Purchase Notice has been given by the Holder thereof may not be
converted into Common Stock on or after the date of the delivery of such Fundamental Change
Purchase Notice unless such Fundamental Change Purchase Notice has first been validly withdrawn as
specified in the following paragraph.



     A Fundamental Change Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the Fundamental Change
Purchase Notice at any time prior to the close of business on the Business Day immediately
preceding the Fundamental Change Purchase Date specifying:



     (1) if a Certificated Security has been issued, the certificate number of the Notes in respect
of which such notice of withdrawal is being submitted, or if a Certificated Security has not been
issued, such information as may be required by Applicable Procedures;



     (2) the principal amount, in integral multiples of $1,000, of the Notes being withdrawn; and



     (3) the principal amount of such Notes which remain subject to the Fundamental Change Purchase
Notice, if any.



     SECTION 803. Deposit of Fundamental Change Purchase Price.



     On the Fundamental Change Purchase Date, the Company shall, to the extent lawful accept for
payment all the Notes or portions thereof properly tendered pursuant to the Fundamental Change
Offer and deliver or cause to be delivered to the Trustee the Notes so accepted together with an
Officers’ Certificate, stating the aggregate principal amount of Notes or portions thereof being
purchased.



     On or before 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the
Company shall deposit with the Trustee or with a Paying Agent (other than the Company or an
Affiliate of the Company) an amount of money (in immediately available funds if deposited on such
Business Day) sufficient to pay the aggregate



38









 







Fundamental Change Purchase Price of all the Notes or portions thereof that are to be
purchased as of such Fundamental Change Purchase Date. The manner in which the deposit required by
this Section 803 is made by the Company shall be at the option of the Company; provided, however,
that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall have
immediately available funds on the Fundamental Change Purchase Date.



     If a Paying Agent holds, in accordance with the terms hereof, funds sufficient to pay the
Fundamental Change Purchase Price of any Note for which a Fundamental Change Purchase Notice has
been tendered and not withdrawn in accordance with this Supplemental Indenture then, on the
Fundamental Change Purchase Date such Note shall cease to be Outstanding and the rights of the
Holder in respect thereof shall terminate (other than the right to receive the Fundamental Change
Purchase Price). The Company shall publicly announce the principal amount of Notes purchased as a
result of such Fundamental Change on or as soon as practicable after the Fundamental Change
Purchase Date.



     SECTION 804. Securities Purchased In Part.



     Any Note that is to be purchased only in part shall be surrendered at the office of a Paying
Agent and promptly after the Fundamental Change Purchase Date the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Note, without service charge (other
than amounts to be paid in respect of applicable transfer taxes), a new Note or Notes, of such
authorized denomination or denominations in integral multiples of $1,000 as may be requested by
such Holder, in aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Note so surrendered that is not purchased.



     SECTION 805. Compliance With Securities Laws Upon Purchase of Securities.



     In connection with any offer to purchase or purchase of Notes under this Article (provided
that such offer or purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the Exchange Act at the time
of such offer or purchase), the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 and any
other tender offer rules promulgated under the Exchange Act, (ii) file the related Schedule TO (or
any successor schedule, form or report), if required, under the Exchange Act and (iii) otherwise
comply with all applicable federal and state securities laws so as to permit the rights and
obligations under this Article to be exercised in the time and in the manner specified in this
Article.



     SECTION 806. Repayment to the Company.



     The Trustee and the Paying Agent shall return to the Company any cash or Common Stock that
remains unclaimed for two years, subject to applicable unclaimed property law, together with
interest or dividends, if any, thereon held by them for the payment of the Fundamental Change
Purchase Price; provided, however, that to the



39









 







extent that the aggregate amount of cash or Common Stock deposited by the Company pursuant to
Section 603 exceeds the aggregate Fundamental Change Purchase Price of the Notes or portions
thereof which the Company is obligated to purchase as of the Fundamental Change Purchase Date, then
on the Business Day following the Purchase Date, the Trustee shall return any such excess to the
Company together with interest or dividends, if any, thereon. Thereafter, any Holder entitled to
payment must look to the Company for payment as general creditors, unless an applicable abandoned
property law designates another Person.]



ARTICLE NINE




MISCELLANEOUS PROVISIONS




     The Trustee makes no undertaking or representations in respect of, and shall not be
responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this
Supplemental Indenture or the proper authorization or the due execution hereof by the Company or
for or in respect of the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.



     Except as expressly amended hereby, the Original Indenture shall continue in full force and
effect in accordance with the provisions thereof and the Original Indenture is in all respects
hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed
a part of the Original Indenture in the manner and to the extent herein and therein provided.



     This Supplemental Indenture shall be governed by, and construed in accordance with, the laws
of the State of New York.



     This Supplemental Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall together constitute but
one and the same instrument.



     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the day and year first above written.



	 	 	 	 	 
	 	DTE ENERGY COMPANY

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	 	ATTEST:

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

TRUST COMPANY, N.A.

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




40












 





EXHIBIT A




FORM OF SENIOR NOTE




     THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY (“DTC”), TO A NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL, INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



			
	 	 	 
	CUSIP NO.:       
             

NO. R-     
	 	$         
           
	 	 	 





DTE ENERGY COMPANY

SERIES      % SENIOR NOTES DUE




     DTE ENERGY COMPANY, a corporation duly organized and existing under the laws of the State of
Michigan (herein referred to as the “Company”, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of          
               
                 
                  
              
      ($          
          ) on
           (“Stated Maturity” with respect to the principal of this Note) [, unless
previously redeemed,] [and to pay interest at the rate of      % per annum on said principal sum
from the date of issuance or from the most recent Interest Payment Date to which interest has been
paid or duly provided for until the principal of this Note becomes due and payable, and on any
overdue principal and premium and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per annum during such
overdue period. Interest on this Note will be payable [semiannually] [quarterly] in arrears on
          [,        ,            ] and       
               of each
year (each such date, an “Interest Payment Date”), commencing            .]



A-1









 




[If this Note is not to bear interest prior to Stated Maturity, insert] [The principal of this Note
shall not bear interest except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case the overdue principal and any overdue
premium shall bear interest at the rate of [yield to maturity]% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly provided for.
Interest on any overdue principal or premium shall be payable on demand. Any such interest on any
overdue principal or premium that is not so paid on demand shall bear interest at the rate of
[yield to maturity] % per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also be payable on
demand.]



[The amount of interest payable for any period shall be computed on the basis of [twelve 30-day
months and a 360-day year] [a 360-day year and the actual number of days elapsed in such period]
[the actual number of days in the year] and, for any period shorter than a full [semiannual]
[quarterly] interest period, will be computed on the basis of the actual number of days elapsed in
such period. In the event that any Interest Payment Date, redemption date or other date of
Maturity of the Notes is not a Business Day, then payment of the amount payable on such date will
be made on the next succeeding day which is a Business Day [(and without any interest or other
payment in respect of any such delay),] [except that, if such Business Day is in the next
succeeding calendar [year] [month], such payment shall be made on the immediately preceding
Business Day [without reduction in the amount due to such early payment], in each case with the
same force and effect as if made on such date.] A “Business Day” shall mean each day other than a
Saturday or a Sunday or a day on which commercial banks in The City of New York are authorized or
obligated by or pursuant to law or executive order to be closed. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date with respect to
this Note will, as provided in the Indenture (as defined herein), be paid to the person in whose
name this Note (or one or more Predecessor Securities, as defined in said Indenture) is registered
at the close of business on the relevant record date for such interest installment, which shall be
the [fifteenth calendar day (whether or not a Business Day)] prior to the relevant Interest Payment
Date (the “Regular Record Date”). Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holders on such Regular Record
Date, and may either be paid to the person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered
Holders of this series of Notes not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of [, and premium, if
any,] and the interest on this Note shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York, in any coin or
currency of


A-2









 






the United States of America which at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the option of the Company
by check mailed to the registered Holder at the close of business on the Regular Record Date at
such address as shall appear in the Security Register.] Notwithstanding anything else contained
herein, if this Note is a Global Note and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee in accordance with
arrangements then in effect between the Trustee and the Depositary.



This Note is one of a duly authorized series of Securities of the Company, designated as the
“        Series      % Senior Notes due        ” (the “Notes”), initially limited to an
aggregate principal amount of $        (except for Notes authenticated and delivered
upon transfer of, or in exchange for, or in lieu of other Notes, and except as further provided in
the Indenture), all issued or to be issued under and pursuant to an Amended and Restated Indenture,
dated as of April 9, 2001, as supplemented through and including the Supplemental Indenture dated
as of      , with respect to the Notes (the “Supplemental Indenture”), as
further amended, supplemented or modified from time to time (the “Indenture”), duly executed and
delivered between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee
(herein referred to as the “Trustee”, which term includes any successor trustee under the
Indenture), to which Indenture reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the registered Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered.



[[Except as provided below,] This Note is not subject to repayment at the option of the Holder
hereof.] [[Except as provided below,] [T][t]his Note is not redeemable by the Company prior to
maturity and is not subject to any sinking fund.]



This Note will be redeemable at the option of the Company, in whole at any time or in part from
time to time (any such date of optional redemption, an “Optional Redemption Date,” which shall be a
“Redemption Date” for purposes of the Indenture), at an optional redemption price (which shall be a
“Redemption Price” for purposes of the Indenture) equal to [100% of the principal amount redeemed
plus the accrued and unpaid interest thereon to the date fixed for redemption] [the greater of (i)
100% of the principal amount of this Note to be redeemed and (ii) the sum of the present values of
the principal amount of this Note to be redeemed and the remaining scheduled payments of interest
on the principal amount of this Note to be redeemed (exclusive of interest accrued to the related
Optional Redemption Date) until Stated Maturity, in each case discounted from their respective
scheduled payment dates to such Optional Redemption Date on a semiannual basis (assuming a 360-day
year consisting of 30-day months) at the Adjusted Treasury Rate (as defined below) plus
       basis points, plus in either case, accrued interest thereon to the date of redemption.]



Notwithstanding the foregoing, installments of interest on this Note that are due and payable on
Interest Payment Dates falling on or prior to a Redemption Date will be
payable on the Interest Payment Date to the registered Holders as of the close of business on the
relevant Record Date.



A-3









 






[“Adjusted Treasury Rate” means, with respect to any Optional Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated
on the third Business Day preceding such Optional Redemption Date, using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury
Price for such Optional Redemption Date.



“Comparable Treasury Issue” means the United States Treasury security determined by the Reference
Treasury Dealer as having a maturity comparable to the remaining term of this Note that would be
utilized, at the time of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity with the remaining term of this
Note.



“Comparable Treasury Price” means, with respect to any Optional Redemption Date, (i) the average of
the Reference Treasury Dealer Quotations for such Optional Redemption Date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii)
if only one Reference Treasury Dealer Quotation is received, such quotation.



“Reference Treasury Dealer” means each of: (i)       ,
       and        (or their respective
affiliates which are Primary Treasury Dealers), and their respective successors; provided, however,
that if any of the foregoing cease to be a primary U.S. Government securities dealer in the United
States (a “Primary Treasury Dealer”), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer(s) selected by the Trustee after
consultation with the Company.



“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any
Optional Redemption Date, the average, as determined by the Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Optional Redemption Date.]



Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before
the Optional Redemption Date to the Holder hereof at its registered address.



Unless the Company defaults in payment of the applicable Redemption Price, on and after the
applicable Redemption Date interest will cease to accrue on the principal amount of this Note
called for redemption.



If money sufficient to pay the applicable Redemption Price with respect to the principal amount of
and accrued interest on the principal amount of this Note to be redeemed on the applicable
Redemption Date is deposited with the Trustee or Paying Agent on or



A-4









 






before the related Redemption Date and certain other conditions are satisfied, then on or after
such Redemption Date, interest will cease to accrue on the principal amount of this Note called for
redemption. If the Notes are only partially redeemed by the Company, the Trustee shall select
which Notes are to be redeemed by lot or in a manner it deems fair and appropriate in accordance
with the terms of the Indenture.



In the event of redemption of this Note in part only, a new Note or Notes of this series for the
unredeemed portion hereof will be issued in the name of the registered Holder hereof upon the
cancellation hereof.]



[The sinking fund for this series provides for the redemption on            in each year
beginning with the year            and ending with the year            of [not less than]
       [(“mandatory sinking fund”) and, at the option of the Company, not more
than        ] aggregate principal amount of Notes of this series. [Notes of
this series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund
payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to
be made in the order in which they become due.]]



[If a Fundamental Change occurs, Holders of Notes shall have the right, at their option, to require
the Company to purchase all of such Holder’s Notes not previously called for redemption, or any
portion of the principal amount thereof, that is equal to $1,000 or an integral multiple of $1,000,
pursuant to a Fundamental Change Offer. The Company shall pay the Fundamental Change Purchase
Price in cash equal to 100% of the aggregate principal amount of the Notes to be purchased.



Within 15 Business Days following any Fundamental Change, the Company shall provide notice in
accordance with the provisions of Section 801(b) of the Supplemental Indenture.



To exercise its purchase right, Holders of Notes must deliver the form entitled “Option of Holder
to Elect Purchase,” in the form attached hereto, so as to be received by the Paying Agent no later
than the close of business on the fifth Business Day prior to the Fundamental Change Purchase Date.
Any Purchase Notice may be withdrawn by the Holder by a written notice provided in accordance with
the provisions of Section 802 of the Supplemental Indenture.



On the Fundamental Change Purchase Date, the Company shall, to the extent lawful, accept for
payment all the Notes or portions thereof properly tendered pursuant to the Fundamental Change
Offer, deposit with the Paying Agent an amount equal to the Fundamental Change Purchase Price in
respect of all the Notes or portions thereof so tendered, and deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers’ Certificate, stating the aggregate
principal amount of Notes or portions thereof being purchased.



The Company shall not be required to make a Fundamental Change Offer following a Fundamental Change
if a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in the Indenture
applicable to a Fundamental Change Offer made by the Company and purchases all of the Notes validly
tendered and not withdrawn under such Fundamental Change Offer.



A-5









 






If cash sufficient to pay the Fundamental Change Purchase Price of all Notes or portions thereof to
be purchased as of the Fundamental Change Purchase Date is deposited with the Paying Agent by 11:00
a.m. on the Fundamental Change Purchase Date, all interest shall cease to accrue on such Notes (or
portions thereof) immediately after such Fundamental Change Purchase Date, and the Holder hereof
shall have no other rights as such (other than the right to receive the Fundamental Change Purchase
Price upon surrender of such Note).]



[The Holder of any Note shall have the right, exercisable at any time after the Issue Date of the
Notes and before the close of business on the Business Day immediately preceding the date of Stated
Maturity, to convert the principal amount of the Notes (or any portion of it that is an integral
multiple of $1,000) into shares of Common Stock at the Conversion Price, subject to adjustment as
described below. The foregoing notwithstanding, if a Note is called for redemption, such
conversion right shall terminate at the close of business on the Business Day immediately preceding
the Redemption Date, unless the Company defaults in making the payment due on the Redemption Date,
in which case the conversion right shall terminate at the close of business on the date such
default is cured and such payment is made.



A Note in respect of which a Holder has delivered a Purchase Notice or a Fundamental Change
Purchase Notice exercising the option of such Holder to require the Company to purchase such Note
may be converted only if such notice of exercise is withdrawn in accordance with the terms of the
Indenture. The initial Conversion Price is $        per share of Common Stock, subject to
adjustment upon the occurrence of certain events described in the Indenture. The shares of Common
Stock shall be deliverable through the Conversion Agent to Holders surrendering Notes as promptly
as practicable but in any event no later than the fifth Business Day following the Conversion Date.
The Company shall deliver cash or a check in lieu of any fractional share of Common Stock.



Except as provided in the next succeeding paragraph, on conversion of a Holder’s Notes, such Holder
shall not receive any cash payment of interest. The Company’s delivery to a Holder of the full
number of shares of Common Stock into which a Note is convertible shall be deemed to satisfy the
Company’s obligation to pay the principal amount at maturity of the Note and to satisfy the
Company’s obligation to pay accrued interest attributable to the period from the most recent
Interest Payment Date through the Conversion Date.



If any Notes are converted during the period after any Regular Record Date but before the next
Interest Payment Date, interest on such Notes shall be paid on the next Interest Payment Date,
notwithstanding such conversion, to the Holder of record on the Regular Record Date. Any Notes
that are, however, delivered to the Company for conversion after any Regular Record Date but before
the next Interest Payment Date must, except as described in the next sentence, be accompanied by a
payment equal to the interest



A-6









 






payable on such Interest Payment Date on the principal amount of Notes being converted. The
Company shall not require the payment to it described in the preceding sentence if, during the
period between a Regular Record Date and the Interest Payment Date to which such Regular Record
Date relates, a conversion occurs prior to a Redemption Date falling during such period. No
fractional shares will be issued upon conversion, but a cash adjustment shall be made for any
fractional shares.



To convert a Note, a Holder must (a) complete and manually sign the form entitled “Conversion
Notice,” in the form attached hereto, and deliver such notice to the Conversion Agent, (b)
surrender the Note to the Conversion Agent, (c) furnish appropriate endorsements and transfer
documents (including any certification that may be required under applicable law) if required by
the Conversion Agent and (d) pay any transfer or similar tax, if required.]



[Subject to the terms and conditions of the Indenture, the Company shall become obligated to
purchase, at the option of the Holder, the Notes held by such Holder on any            in
the years      ,        ,        and            at a Purchase Price equal to 100% of the
principal amount thereof plus accrued and unpaid interest to, but excluding, the Purchase Date,
upon delivery of a Purchase Notice containing the information set forth in the Indenture, at any
time from the opening of business on the date that is 20 Business Days prior to such Purchase Date
until the close of business on the Business Day immediately preceding such Purchase Date and upon
delivery of the Notes to the Paying Agent by the Holder as set forth in the Indenture.



The Purchase Price may be paid, at the option of the Company, in cash or by the issuance of Common
Stock (as provided in the Indenture), or in any combination thereof.



Holders have the right to withdraw any Purchase Notice by delivering to the Paying Agent a written
notice of withdrawal prior to the close of business on the Business Day immediately preceding the
Purchase Date in accordance with the provisions of Section 709 of the Supplemental Indenture.



If cash or securities sufficient to pay the Purchase Price of all Notes or portions thereof to be
purchased as of the Purchase Date is deposited with the Paying Agent by 11:00 a.m. on the Purchase
Date, all interest shall cease to accrue on such Notes (or portions thereof) immediately after such
Purchase Date, and the Holder thereof shall have no other rights as such (other than the right to
receive the Purchase Price upon surrender of such Note).]



[In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the Indenture.]



[Insert for Original Issue Discount Notes] [If an Event of Default with respect to this Note shall
occur and be continuing, an amount of principal of this Note (the “Acceleration Amount”) may be
declared due and payable in the manner and with the



A-7









 






effect provided in the Indenture. In case of a declaration of acceleration on or before
       and on            in any year, the Acceleration Amount per
       principal amount at Stated Maturity of this Note shall be equal to the amount
set forth in respect of such date below:




	 	 	 
	 	 	 	 	Acceleration Amount
	Date of Acceleration	 	per principal amount of Stated Maturity




and in case of a declaration of acceleration on any other date, the Acceleration Amount shall be
equal to the Acceleration Amount as of the next preceding date set forth in the table above, plus
accrued original issue discount (computed in accordance with the method used for calculating the
amount of original issue discount that accrues for U.S. Federal income tax purposes) from such next
preceding date to the date of declaration at the yield to maturity. For the purpose of this
computation the yield to maturity is      %. Upon payment (i) of the Acceleration Amount so
declared due and payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally enforceable), all of the
Company’s obligations in respect of the payment of the principal of and interest, if any, on this
Note shall terminate.]



The Indenture contains provisions for defeasance at any time of the entire indebtedness of this
Note upon compliance by the Company with certain conditions set forth therein.



The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the
Notes under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority of the aggregate principal amount of all Notes issued under the Indenture at
the time outstanding and affected thereby; provided, however, that no such amendment shall without
the consent of the Holder of each Note so affected, among other things (i) change the stated
maturity of the principal of, or any installment of principal of or interest on any Notes of any
series, or reduce the principal amount thereof, or reduce the rate of interest thereon, or reduce
any premium payable upon the redemption thereof or (ii) reduce the percentage of Notes, the Holders
of which are required to consent to any amendment or waiver or for certain other matters as set
forth in the Indenture. The Indenture also contains provisions permitting (i) the registered
Holders of at least 66 2/3% in aggregate principal amount of the Securities of each series at the
time outstanding affected thereby, on behalf of the registered Holders of the Securities of such
series, to waive compliance by the Company with certain provisions of the Indenture and (ii) the
registered Holders of not less than a majority in aggregate principal amount of the Securities of
any series at the time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive certain past defaults under the Indenture and their
consequences. Any such consent or


A-8









 






waiver by the registered Holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such registered Holder and upon all future registered Holders and
owners of this Note and of any Note issued in exchange hereof or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any notation of such consent
or waiver is made upon this Note.



No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional, to pay the principal
of [and premium, if any,] and interest on this Note at the time and place and at the rate and in
the coin or currency herein prescribed.



As provided in the Indenture and subject to certain limitations therein set forth, the transfer of
this Note is registrable in the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place where the principal of
and any interest on this Note are payable or at such other offices or agencies as the Company may
designate, duly endorsed by or accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company and the Security Registrar or any transfer agent duly executed by
the registered Holder hereof or his or her attorney duly authorized in writing, and thereupon one
or more new Notes of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.



Prior to due presentment for registration of transfer of this Note, the Company, the Trustee, any
paying agent and any Security Registrar may deem and treat the registered Holder hereof as the
absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal hereof and interest due hereon and for all
other purposes, and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.



The Notes of this series are issuable only in fully registered form without coupons in
denominations of $1,000 and any integral multiple thereof. This Global Note is exchangeable for
Notes in definitive form only under certain limited circumstances set forth in the Indenture.
Notes of this series so issued are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series of a different authorized denomination, as
requested by the registered Holder surrendering the same.



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As set forth in, and subject to the provisions of, the Indenture, no registered owner of any Note
will have any right to institute any proceeding with respect to the Indenture or for
any remedy thereunder, unless (i) such registered owner shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to the Notes of this series, (ii) the
registered owners of not less than 25% in principal amount of the outstanding Notes of this series
shall have made written request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, (iii) the Trustee shall have failed to institute such proceeding within 60
days and (iv) the Trustee shall not have received from the registered owners of a majority in
principal amount of the outstanding Notes of this series a direction inconsistent with such request
within such 60-day period; provided, however, that such limitations do not apply to a suit
instituted by the registered owner hereof for the enforcement of payment of the principal of or
premium, if any, or any interest on this Note on or after the respective due dates expressed
herein.



Unless the Certificate of Authentication hereon has been executed by the Trustee or a duly
appointed Authentication Agent referred to herein, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.



The Indenture and this Note shall be governed by and construed in accordance with the laws of the
State of New York.



All terms used in this Note which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.




     IN WITNESS WHEREOF, the Company has caused this Instrument to be duly executed.



	 	 	 	 	 
	 	DTE ENERGY COMPANY

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	 	ATTEST:

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



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CERTIFICATE OF AUTHENTICATION





     This is one of the Notes of the series of Notes described in the within mentioned Indenture.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

TRUST COMPANY, N.A.

    as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Date:




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     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto


 



(Please insert Social Security or Other Identifying Number of Assignee)



 



(Please print or type name and address, including zip code of assignee)



the within Note and all rights thereunder, hereby irrevocably constituting and appointing such
person attorneys to transfer the within Note on the books of the Issuer, with full power of
substitution in the premises.




Dated:                                        



NOTICE: The signature of this assignment must correspond with the name as written upon the face of
the within Note in every particular, without alteration or enlargement or any change whatever and
NOTICE: Signature(s) must be guaranteed by a financial institution that is a member of the
Securities Transfer Agents Medallion Program (“STAMP”), the Stock Exchange, Inc. Medallion
Signature Program (“MSP”). When assignment is made by a guardian, trustee, executor or
administrator, an officer of a corporation, or anyone in a representative capacity, proof of his or
her authority to act must accompany this Note.




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[CONVERSION NOTICE




     To convert this Note into Common Stock of the Company, check the box:



     To convert only part of this Note, state the principal amount to be converted (must be $1,000
or a multiple of $1,000): $                    .



     If you want the stock certificate made out in another person’s name, fill in the form below:


 



(Insert other person’s soc. sec. or tax I.D. no.)



 



(Print or type other person’s name, address and zip code)




	 	 	 	 	 	 	 
	Your Signature:

	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 
	(Sign exactly as your name appears on the other side of this Note






*Signature guaranteed by:                                                                    
                                 




By:                                                                       
          ]






 




			
	*	 	The Signature must be guaranteed by an institution which is a member of one of the following
recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee.




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[OPTION OF HOLDER TO ELECT PURCHASE ON FUNDAMENTAL CHANGE




     If you want to elect to have this Note purchased, in whole or in part, by the Company pursuant
to Section 801 of the Supplemental Indenture, check the following box:



     If you want to have only part of this Note purchased by the Company pursuant to Section 801 of
the Supplemental Indenture, state the principal amount you want to be purchased (must be $1,000 or
a multiple of $1,000): $                    .



**Signature guaranteed by:   
              
               
              
                
      
              
              
     




By:                                                                       
          ]






 




			
	**	 	The Signature must be guaranteed by an institution which is a member of one of the following
recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guaranty acceptable to the Trustee.






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