Registration No. 333-________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CONSOLIDATED EDISON, INC.
(Exact name of Registrant as specified in its charter)
CONSOLIDATED EDISON, INC.
(Exact name of Registrant as specified in its charter)
New York 13-3965100
(State of incorporation) (I.R.S. Employer
Identification No.)
4 Irving Place
New York, New York 10003
(212) 460-4600
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
JOAN S. FREILICH or PETER A. IWRIN, ESQ.
Executive Vice President and Vice President-Legal Services
Chief Financial Officer Consolidated Edison Company of New York, Inc.
4 Irving Place
New York, New York 10003
(212) 460-4600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Steven R. Loeshelle, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. __
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. _X_
If this Form is filed to register additional securities for offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ___
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ___
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. ___
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CALCULATION OF REGISTRATION FEE
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Title of Each Class Amount to be Proposed Maximum Proposed Maximum Amount of
of Securities to Registered Offering Aggregate Registration Fee
Be Registered Price Per Unit Offering Price (1)
(1)
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Debt Securities
Preferred Shares
($1.00 par value)
Common Shares
($.10 par value)
Total $730,866,000 (1) $730,866,000 $92,601
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(1) There are being registered hereunder Debt Securities, Preferred Shares
($1.00 par value) and Common Shares ($.10 par value). Pursuant to Rule 457(o)
under the Securities Act of 1933, the table does not specify the amount to be
registered, the proposed maximum offering price per unit or the proposed
maximum aggregate offering price. The proposed maximum offering price per
unit will be determined, from time to time, by the Registrant in connection
with the issuance by the Registrant of the securities registered hereunder.
In no event will the aggregate initial offering price of all securities
registered pursuant to this Registration Statement exceed $730,866,000.
(2) Omitted pursuant to General Instruction II(D) to Form S-3 under the
Securities Act of 1933, as amended.
(3) Estimated solely for purposes of determining the registration fee.
(4) The prospectus filed as part of this Registration Statement also relates to
$194,114,000 of Debt Securities, Preferred and Common Shares remaining
available, of which not more than an aggregate of $119,414,000 may be used
for Preferred and Common Shares, to be offered pursuant to Registration
Statement No. 333-102005.
Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
filed as part of this Registration Statement may be used in connection with the
securities covered by Registration Statement No. 333-102005.
19
PROSPECTUS
Consolidated Edison, Inc.
Debt Securities
Preferred Shares ($1.00 par value)
Common Shares ($.10 par value)
Consolidated Edison, Inc. may offer and sell from time to time up to
an aggregate $925,000,000 of our unsecured debt securities ("Debt Securities"),
preferred shares ($1.00 par value) ("Preferred Shares") and common shares ($.10
par value) ("Common Shares")of which not more than an aggregate of
$850,300,000 may be Preferred Shares or Common Shares. The Common Shares are
listed on the New York Stock Exchange under the symbol "ED".
We will establish the specific price and terms of the Debt Securities,
the Preferred Shares and the Common Shares we will offer (collectively, the
"Securities") and how they will be offered at the time we offer them, and we
will describe them in one or more supplements to this prospectus. This
prospectus may not be used to offer and sell our securities unless accompanied
by a prospectus supplement. You should read this prospectus and the related
supplement before you invest in the Securities.
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Investing in our securities involves risks. See "Risk Factors"
beginning on page 3 of this Prospectus.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAVE THESE ORGANIZATIONS DETERMINED THAT THIS
PROSPECTUS IS ACCURATE OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
--------------------
We will offer and sell the Securities through one or more
underwriters. We will set forth in the related prospectus supplement the name of
the underwriters, the discount or commission received by the underwriters from
us as compensation, our other expenses for the offering and sale of the
Securities, and the net proceeds we receive from the sale. See "Plan of
Distribution."
The date of this Prospectus is __________ __, 2004.
TABLE OF CONTENTS
About This Prospectus ......................................2
Risk Factors................................................3
Where You Can Find More Information.........................5
Con Edison ................................................6
Use of Proceeds.............................................6
Ratio of Earnings to Fixed Charges..........................7
Description of Debt Securities..............................7
Description of Preferred Shares............................16
Description of Common Shares...............................16
Plan of Distribution.......................................18
Legal Matters..............................................18
Experts....................................................19
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement for the Securities that
we have filed with the Securities and Exchange Commission using a "shelf"
registration process. This prospectus provides you with a general description of
the Securities. We will provide you with a supplement to this prospectus that
will describe the specific terms of the Securities that we will offer. The
prospectus supplement may also add, update or change the information contained
in this prospectus. Before you invest, you should carefully read this
prospectus, the applicable prospectus supplement and the information contained
in the documents we refer to in this prospectus under "Where You Can Find More
Information."
References in this prospectus to the terms "we," "us" or other similar
terms mean Consolidated Edison, Inc., unless the context clearly indicates
otherwise. We are also referred to in this prospectus as Con Edison.
You should rely only on the information contained or incorporated by
reference in this prospectus and any accompanying prospectus supplement. We have
not authorized anyone else to provide you with any different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell securities in any jurisdiction
where the offer or sale is not permitted. The information contained in this
prospectus is current only as of the date of this prospectus.
2
RISK FACTORS
You should carefully consider the risks described below, as well as
the other information contained or incorporated by reference in this prospectus
before making a decision to invest in our Securities. See "Where You Can Find
More Information," below. Our business is influenced by many factors that are
difficult to predict, involve uncertainties that may materially affect actual
results and are often beyond our control. Risk factors that may affect us and
the value of the Securities include:
Our Results of Operations Are Weather Sensitive - Our results of
operations can be affected by changes in the weather. Weather conditions
directly influence the demand for electricity, gas and steam and can affect the
price of energy commodities.
Our Rate Plans Are For Limited Periods - Our utility subsidiaries
have rate plans approved by state utility regulators that cover the rates they
can charge their customers. Rates charged to customers generally may not be
changed during the respective limited terms of the rate plans other than for the
recovery of energy costs and limited other exceptions. As a result, these rate
plans do not reflect all of the increased construction and other costs that have
been experienced since the date the rate plans became effective. The approval of
new rate plans or changes to existing rate plans may have a significant effect
on our results of operations and financial condition. The current rate plans and
any material matters relating to potential rate changes are described in the
information incorporated by reference in this prospectus.
Our Ability To Pay Dividends Or Interest Is Subject To Regulatory
Restrictions - Our ability to pay dividends or interest on the Securities
depends primarily on the dividends and other distributions we receive from our
subsidiaries. The dividends that the utility subsidiaries may pay to us are
generally limited to not more than 100 percent of their respective income
available for dividends calculated on a two-year rolling average basis, with
certain exceptions.
We Are Subject To Complex Government Regulations - In addition to
regulation of rates, our operations are subject to extensive federal and state
regulation that requires numerous permits, approvals and certificates from
various federal, state and local governmental agencies. We must also comply with
environmental and other laws and regulations. New laws or regulations or the
revision or reinterpretation of existing laws or regulations may adversely
affect us.
We Are Exposed To Material Liabilities Relating To Hazardous
Substances - Hazardous substances, such as asbestos, polychlorinated biphenyls
(PCBs) and coal tar, have been used or generated in the course of operations of
our utility subsidiaries and are present in facilities and equipment currently
or previously owned by them. Our exposure to material liabilities relating to
hazardous substances is described in the information incorporated by reference
in this prospectus.
We Are Engaged In A Material Legal Proceeding With Northeast
Utilities - In 2001, we sued Northeast Utilities to recover damages from their
breach of our merger agreement with them and to seek the court's declaration
that we had no further obligations under the merger agreement. Northeast
Utilities alleges we breached the merger agreement and is pursuing a
counter-claim against us for damages in excess of $1.2 billion. There are also
claims by purported classes of Northeast Utilities shareholders seeking damages
from us that we believe to be substantially duplicative of those sought by
Northeast Utilities. These legal proceedings are described in the information
incorporated by reference in this prospectus.
3
Our Unregulated Subsidiaries Are In Evolving Businesses - Our
unregulated subsidiaries are in evolving energy-related and telecommunications
businesses. These businesses are subject to different risks than our regulated
utility subsidiaries. Among other things, compared to the utilities, the demand
for our unregulated subsidiaries' products and services is less predictable, the
prices for their products and services are more volatile and the value of their
assets is more difficult to determine.
Our Pension and OPEB Costs Are Subject to Fluctuation Based on the
Performance of the Financial Markets - Our cost to provide pension and other
post-employment benefits is subject to fluctuation when actual experience, most
notably return on plan assets, varies from assumptions used in actuarial
calculations. In recent years, this cost has been negative (resulting in a
credit to, and increase in, net income), primarily because of the amortization
of previous years' net investment gains on plan assets. However, there were
significant net investment losses on plan assets in some recent years that will
increase our costs in 2004 and subsequent years. The investment of our plan
assets is described in the information incorporated by reference in this
prospectus.
Our Financial Statements Reflect the Application of Critical
Accounting Policies - The application of our critical accounting policies
reflect complex judgments and estimates. These policies, which are described in
the information incorporated by reference in this prospectus, include industry
specific accounting applicable to regulated public utilities and accounting for
pensions and other post-retirement benefits, contingencies, long-lived assets,
derivative instruments, goodwill and leases. The adoption of new generally
accepted accounting policies or changes to current accounting policies or
interpretations of such policies may materially affect our results of operations
and financial condition.
Changes In Our Ratings May Have A Negative Impact On Us - Our
commercial paper and unsecured debt are rated by Moody's Investors Services,
Inc., Standard & Poor's Ratings Services and Fitch, Inc. These ratings impact
our cost of funds. Our current ratings are included in the information
incorporated by reference in this prospectus.
Our Revenues And Results Of Operations Are Subject To Risks That Are
Beyond Our Control - The cost of repairing damage to our operating subsidiaries'
facilities and the potential disruption of their operations due to storms,
natural disasters, wars, terrorist acts and other catastrophic events may
adversely impact our results of operations, financial condition and cash flows.
The occurrence or risk of occurrence of future terrorist attacks or related acts
of war could also adversely affect the New York or United States economy. A
lower level of economic activity could result in a decline in energy
consumption, which could adversely affect our revenues and earnings and limit
our future growth prospects.
4
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. We file such reports,
proxy statements and other information through the Commission's Electronic Data
Gathering, Analysis and Retrieval system and these filings are publicly
available through the Commission's Web site (http://www.sec.gov). You may read
and copy such material at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
its Northeast Regional Office, 233 Broadway, Suite 1300, New York, New York
10279, and at its Midwest Regional Office, 175 W. Jackson Boulevard, Suite 900,
Chicago, Illinois 60604. You may also obtain copies of such material at
prescribed rates from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Section by calling the Commission at
1-800-SEC-0330.
The Commission allows us to "incorporate by reference" into this prospectus
the information we file with them. This means that we can disclose important
information to you by referring you to the documents containing the information.
The information we incorporate by reference is considered to be an important
part of this prospectus and should be read with the same care. Information that
we file later with the Commission that is incorporated by reference into this
prospectus will automatically update and supercede this information. We are
incorporating by reference into this prospectus the following Con Edison
documents that we have filed with the Commission and any subsequent filings we
make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the offering of the Securities described
in this prospectus is completed, provided, however, that we are not
incorporating any information furnished under Items 9 or 12 of any Current
Report on Form 8-K:
o Annual Report on Form 10-K for the year ended December 31, 2003 ("2003
Form 10-K").
o Current Report on Form 8-K, dated January 22, 2004.
This prospectus is part of a registration statement we have filed with the
Commission relating to the Securities. As permitted by the Commission's rules,
this prospectus does not contain all of the information included in the
registration statement and the accompanying exhibits and schedules we file with
the Commission. You should read the registration statement and the exhibits and
schedules for more information about us and the Securities. The registration
statement, exhibits and schedules are also available at the Commission's Public
Reference Section or through its Web site.
You may obtain a free copy of our filings with the Commission by writing or
telephoning us at our principal executive offices: Corporate Secretary,
Consolidated Edison, Inc., 4 Irving Place, New York, New York 10003 (Telephone
No.: 212-460-4502).
5
CON EDISON
Con Edison is a holding company that operates only through its
subsidiaries. We were incorporated in New York State in 1997.
Our principal subsidiary is Consolidated Edison Company of New York,
Inc. ("Con Edison of New York"), a regulated utility that provides electric
service to over three million customers and gas service to over one million
customers in New York City and Westchester County. It also provides steam
service in parts of Manhattan.
We also own Orange and Rockland Utilities, Inc., a regulated utility
that, along with its regulated utility subsidiaries, provides electric service
in southeastern New York and in adjacent sections of New Jersey and northeastern
Pennsylvania, an approximately 1,350 square mile service area.
We have four unregulated subsidiaries: Consolidated Edison
Solutions, Inc., a retail energy services company that sells electricity and gas
to delivery customers of utilities; Consolidated Edison Energy, Inc., a
wholesale energy supply company that enters into financial and commodity
instruments as part of its energy trading activities; Consolidated Edison
Development, Inc., a company that acquires, develops and operates generating
projects; and Con Edison Communications, LLC, a company that builds and operates
fiber optic networks to provide wholesale telecommunications services.
Con Edison has no material assets other than the stock of its
subsidiaries. Our ability to pay interest on the Debt Securities and dividends
on the Preferred Shares and Common Shares is dependent on our receipt of
dividends from our subsidiaries or proceeds from the sale by us of additional
securities or assets. Our principal subsidiary, Con Edison of New York, is
subject to certain restrictions on the dividends that it may pay to us. See Note
C to Con Edison's consolidated financial statements in the 2003 Form 10-K.
USE OF PROCEEDS
Unless we inform you otherwise in a supplement to this prospectus,
we anticipate using the net proceeds received by us from the sale of the
Securities for investment by us in our regulated utility subsidiary, Con Edison
of New York, for the funding of its construction expenditures, and for other
general corporate purposes, including, repayment of our short-term debt and
repurchase, retirement or refinancing of our other debt securities.
6
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth Con Edison's ratios of earnings to
fixed charges for the periods indicated:
Year Ended December 31,
2003 2002 2001 2000 1999
---- ---- ---- ---- ----
2.7 3.1 3.3 3.0 3.8
The ratio of earnings to fixed charges have been computed based
upon net income, income tax, income tax deferred, investment tax credits
deferred and fixed charges. Fixed charges include interest on long-term debt
and other interest (whether expensed or capitalized) expense, amortization of
debt expense, discount and premium, the preferred stock dividend requirement
of our subsidiary, Con Edison of New York and a reasonable approximation of
the interest component of rentals.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an indenture (the
"Indenture"), dated as of April 1, 2002 between Con Edison and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as Trustee ("Trustee") a copy
of which is included as an exhibit to the registration statement of which this
prospectus is a part. Con Edison may also enter into one or more additional
indentures with other trustees with respect to certain of the Debt Securities.
Any such indenture would contain covenants and other provisions similar to those
described below. Reference is made to the prospectus supplement regarding any
additional indentures under which Debt Securities will be issued.
The Debt Securities will be unsecured general obligations of Con
Edison ranking equally and ratably in right of payment with the other unsecured
debt securities of Con Edison issued under the Indenture that are not
subordinated obligations of Con Edison ("Subordinated Securities"); provided,
however, that if so provided in the prospectus supplement relating to a series
of Debt Securities, the Debt Securities will be Subordinated Securities.
There is no requirement that future issues of debt securities of Con
Edison be issued under the Indenture, and Con Edison will be free to employ
other indentures or documentation, containing provisions different from those
included in the Indenture or applicable to one or more issues of Debt
Securities, in connection with future issues of such other debt securities.
The Indenture does not specifically restrict the ability of Con
Edison to engage in transactions which could have the effect of increasing the
ratio of debt to equity capitalization of Con Edison or a successor corporation.
For example, the Indenture does not limit the amount of indebtedness of Con
Edison, the payment of dividends by Con Edison or the acquisition by Con Edison
of any of the equity securities of Con Edison or Con Edison of New York. The
Indenture also permits Con Edison to merge or consolidate or to transfer its
assets, subject to certain conditions (see "Consolidation, Merger and Sale"
below). Con Edison must obtain approvals from state and/or federal regulatory
bodies to merge or consolidate.
7
The following summary of the Indenture does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
Indenture, including the definitions therein of certain terms.
General: The Indenture provides that the Debt Securities offered and
other unsecured debt securities of Con Edison, without limitation as to
aggregate principal amount (collectively the "Indenture Securities"), may be
issued in one or more series, in each case as authorized from time to time by
Con Edison.
Reference is made to the prospectus supplement relating to the Debt
Securities offered for any of the following terms not provided herein:
(1) the title of the Debt Securities;
(2) the aggregate principal amount of the Debt Securities;
(3) the percentage of the principal amount representing the price for
which the Debt Securities shall be issued;
(4) the date or dates on which the principal of, and premium, if any, on
the Debt Securities shall be payable;
(5) the rate or rates (which may be fixed or variable) at which the Debt
Securities shall bear interest, if any, or the method by which such
rate or rates shall be determined;
(6) if the amount of payments of the principal of, premium, if any, or
interest, if any, on the Debt Securities may be determined with
reference to an index, formula or other method, the manner in which
such amounts shall be determined;
(7) the date or dates from which any such interest shall accrue, or the
method by which such date or dates shall be determined, the dates on
which any such interest shall be payable and any record dates
therefor;
(8) the place or places where the principal of, and premium, if any, and
interest, if any, on the Debt Securities shall be payable;
(9) the period or periods, if any, within which, the price or prices at
which, and the terms and conditions upon which the Debt Securities
may be redeemed, in whole or in part, at the option of Con Edison;
(10) the obligation, if any, of Con Edison to redeem, purchase or repay
the Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms
and conditions upon which the Debt Securities shall be redeemed,
purchased or repaid pursuant to such obligation;
(11) whether the Debt Securities are to be issued in whole or in part in
the form of one or more Global Securities and, if so, the identity
of the Depositary for such Global Security or Global Securities;
8
(12) if other than $1,000 or an integral multiple thereof, the
denominations in which the Debt Securities shall be issued;
(13) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities payable upon declaration of
acceleration of the maturity of the Debt Securities;
(14) any deletions from or modifications of or additions to the Events of
Default set forth in Section 6.01 of the Indenture pertaining to the
Debt Securities;
(15) the provisions, if any, relating to the cancellation and
satisfaction of the Indenture with respect to the Debt Securities
prior to the maturity thereof pursuant to Sections 12.01 and 12.02
of the Indenture (see "Satisfaction and Discharge of Indenture;
Defeasance");
(16) the terms, if any, upon which Con Edison may elect not to pay
interest on an interest payment date;
(17) the provisions, if any, relating to the subordination of the Debt
Securities pursuant to Article 14 of the Indenture (see
"Subordination"); and
(18) any other terms of the Debt Securities not inconsistent with the
provisions of the Indenture and not adversely affecting the rights
of any other series of Indenture Securities then outstanding.
(Section 2.03)
Con Edison may authorize the issuance and provide for the terms of a
series of Indenture Securities pursuant to a resolution of its Board of
Directors or any duly authorized committee thereof or pursuant to a supplemental
indenture. The provisions of the Indenture described above permit Con Edison, in
addition to issuing Indenture Securities with terms different from those of
Indenture Securities previously issued, to "reopen" a previous issue of a series
of Indenture Securities and to issue additional Indenture Securities of such
series.
The Indenture Securities will be issued only in registered form
without coupons and, unless otherwise provided with respect to a series of
Indenture Securities, in denominations of $1,000 and integral multiples thereof.
(Section 2.02) Indenture Securities of a series may be issued in whole or in
part in the form of one or more Global Securities (see "Global Securities"). One
or more Global Securities will be issued in a denomination or aggregate
denominations equal to the aggregate principal amount of outstanding Indenture
Securities of the series to be represented by such Global Security or Global
Securities. (Section 2.01) No service charge will be made for any transfer or
exchange of Indenture Securities, but Con Edison may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 2.05)
9
One or more series of the Indenture Securities may be issued with
the same or various maturities at par or at a discount. Debt Securities bearing
no interest or interest at a rate which at the time of issuance is below the
market rate ("Original Issue Discount Securities") will be sold at a discount
(which may be substantial) below their stated principal amount. Federal income
tax consequences and other special considerations applicable to any such
Original Issue Discount Securities will be described in the prospectus
supplement relating thereto.
Subordination: If the prospectus supplement relating to a particular
series of Indenture Securities so provides, such securities will be Subordinated
Securities and the payment of the principal of, premium, if any, and interest on
the Subordinated Securities will be subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness to the extent set forth
in the next paragraph. (Section 14.01)
In the event (a) of any distribution of assets of Con Edison in
bankruptcy, reorganization or receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshalling of assets and liabilities
of Con Edison, except for a distribution in connection with a consolidation,
merger, sale, transfer or lease permitted under the Indenture (see
"Consolidation, Merger and Sale"), or (b) the principal of any Senior
Indebtedness shall have been declared due and payable by reason of an event of
default with respect thereto and such event of default shall not have been
rescinded, then the holders of Subordinated Securities will not be entitled to
receive or retain any payment, or distribution of assets of Con Edison, in
respect of the principal of, premium, if any, and interest on the Subordinated
Securities until the holders of all Senior Indebtedness receive payment of the
full amount due in respect of the principal of, premium, if any, and interest on
the Senior Indebtedness or provision for such payment on the Senior Indebtedness
shall have been made. (Section 14.02)
Subject to the payment in full of all Senior Indebtedness, the
holders of the Subordinated Securities shall be subrogated to the rights of the
holders of the Senior Indebtedness to receive payments or distributions
applicable to the Senior Indebtedness until all amounts owing on the
Subordinated Securities shall be paid in full. (Section 14.03)
"Senior Indebtedness" means all indebtedness of Con Edison for the
repayment of money borrowed (whether or not represented by bonds, debentures,
notes or other securities) other than the indebtedness evidenced by the
Subordinated Securities and any indebtedness subordinated to, or subordinated on
parity with, the Subordinated Securities. Senior Indebtedness does not include
customer deposits or other amounts securing obligations of others to Con Edison.
(Section 14.01)
The Indenture does not limit the aggregate amount of Senior
Indebtedness that Con Edison may issue. As of December 31, 2003, $7.1 billion of
Senior Indebtedness was outstanding, not including as "Senior Indebtedness"
approximately $1 billion of guarantees by Con Edison of certain obligations of
its subsidiaries.
Redemption: If the prospectus supplement relating to a particular
series of Indenture Securities so provides, such securities will be subject to
redemption at the option of Con Edison. Notice of any redemption of Indenture
Securities shall be given to the registered holders of such securities not less
than 30 days nor more than 60 days prior to the date fixed for redemption. If
less than all of a series of Indenture Securities are to be redeemed, the
Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Indenture Securities of such series or portions
thereof to be redeemed.
10
Global Securities: The Indenture Securities of a series may be
issued in whole or in part in the form of one or more Global Securities that
will be deposited with, or on behalf of, the Depositary identified in the
prospectus supplement relating thereto. Unless and until it is exchanged in
whole or in part for Indenture Securities in definitive form, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. (Sections 2.01 and 2.05)
The specific terms of the depositary arrangement with respect to any
Indenture Securities of a series will be described in the prospectus supplement
relating thereto. Con Edison anticipates that the following provisions will
apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such
Global Security will credit, on its book entry registration and transfer system,
the respective principal amounts of the Indenture Securities represented by such
Global Security to the accounts of institutions that have accounts with such
Depositary ("participants"). The accounts to be credited shall be designated by
the underwriters through which such Indenture Securities were sold. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests in such Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Depositary
for such Global Security or by participants or persons that hold through
participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security, or its nominee, is
the owner of such Global Security, such Depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Indenture Securities
represented by such Global Security for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in a Global Security will not
be entitled to have Indenture Securities of the series represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of Indenture Securities of such series in definitive
form and will not be considered the owners or holders thereof under the
Indenture.
Payments of principal of, premium, if any, and interest, if any, on
Indenture Securities registered in the name of or held by a Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be, as
the registered owner of the Global Security representing such Indenture
Securities. None of Con Edison, the Trustee or any paying agent for such
Indenture Securities will have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial ownership
interests in a Global Security for such Indenture Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Con Edison expects that the Depositary for Indenture Securities of a
series, upon receipt of any payment of principal, premium, if any, or interest,
if any, in respect of a Global Security will immediately credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of such Depositary. Con Edison also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be
11
governed by standing instructions and customary practices, as is now the case
with securities registered in "street name," and will be the responsibility of
such participants.
If a Depositary for Indenture Securities of a series is at any time
unwilling or unable to continue as Depositary and a successor depositary is not
appointed by Con Edison within 90 days, Con Edison will issue Indenture
Securities of such series in definitive form in exchange for the Global Security
or Global Securities representing the Indenture Securities of such series. In
addition, Con Edison may at any time and in its sole discretion determine not to
have any Indenture Securities of a series represented by one or more Global
Securities and, in such event, will issue Indenture Securities of such series in
definitive form in exchange for the Global Security or Global Securities
representing such Indenture Securities. Further, if Con Edison so specifies with
respect to the Indenture Securities of a series, each person specified by the
Depositary of the Global Security representing Indenture Securities of such
series may, on terms acceptable to Con Edison and the Depositary for such Global
Security, receive Indenture Securities of the series in definitive form. In any
such instance, each person so specified by the Depositary of the Global Security
will be entitled to physical delivery in definitive form of Indenture Securities
of the series represented by such Global Security equal in principal amount to
such person's beneficial interest in the Global Security.
Payments and Paying Agents: Payment of principal of and premium, if
any, on Indenture Securities will be made against surrender of such Indenture
Securities at The Bank of New York, 101 Barclay Street, Stock Transfer Division,
New York, New York 10286. Unless otherwise indicated in the prospectus
supplement, payment of any installment of interest on Indenture Securities will
be made to the person in whose name such Indenture Security is registered at the
close of business on the record date for such interest. Unless otherwise
indicated in the prospectus supplement, payments of such interest will be made
at The Bank of New York, or by a check mailed to each holder of an Indenture
Security at such holder's registered address.
All moneys paid by Con Edison to a paying agent for the payment of
principal of, premium, if any, or interest, if any, on any Indenture Security
that remain unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will be repaid to Con Edison and the
holder of such Indenture Security entitled to receive such payment will
thereafter look only to Con Edison for payment thereof. (Section 12.05) However,
any such payment shall be subject to escheat pursuant to state abandoned
property laws.
12
Consolidation, Merger and Sale: The Indenture permits Con Edison,
without the consent of the holders of any of the Indenture Securities, to
consolidate with or merge into any other corporation or sell, transfer or lease
its properties as an entirety or substantially as an entirety to any person,
provided that: (i) the Successor is a corporation organized under the laws of
the United States of America or any state thereof; (ii) the Successor assumes
Con Edison's obligations under the Indenture and the Indenture Securities; (iii)
immediately after giving effect to the transaction, no Event of Default (see
"Default and Certain Rights on Default") and no event that, after notice or
lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing; and (iv) certain other conditions are met. (Section 11.02)
The Indenture does not restrict the merger of another corporation into Con
Edison.
Modification of the Indenture: The Indenture contains provisions
permitting Con Edison and the Trustee, without the consent of the holders of the
Indenture Securities, to establish, among other things, the form and terms of
any series of Indenture Securities issuable thereunder by one or more
supplemental indentures, and, with the consent of the holders of a majority in
aggregate principal amount of the Indenture Securities of any series at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture with respect
to Indenture Securities of such series, or modifying in any manner the rights of
the holders of the Indenture Securities of such series; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity, or the
earlier optional date of maturity, if any, of any Indenture Security of a
particular series or reduce the principal amount thereof or the premium thereon,
if any, or reduce the rate or extend the time of payment of interest thereon, or
make the principal thereof or premium, if any, or interest thereon payable in
any coin or currency other than that provided in the Indenture Security, without
the consent of the holder of each Indenture Security so affected, or (ii) reduce
the principal amount of Indenture Securities of any series, the holders of which
are required to consent to any such supplemental indenture, without the consent
of the holders of all Indenture Securities of such series outstanding
thereunder. (Sections 10.01 and 10.02)
Default and Certain Rights on Default: The Indenture provides that
the Trustee or the holders of 25% or more in aggregate principal amount of
Indenture Securities of a series outstanding thereunder may declare the
principal of all Indenture Securities of such series to be due and payable
immediately, if any Event of Default with respect to such series of Indenture
Securities shall occur and be continuing. However, if all defaults with respect
to Indenture Securities of such series (other than non-payment of accelerated
principal) are cured, the holders of a majority in aggregate principal amount of
the Indenture Securities of such series outstanding thereunder may waive the
default and rescind the declaration and its consequences. Events of Default with
respect to a series of Indenture Securities include (unless specifically deleted
in the supplemental indenture or Board Resolution under which such series of
Indenture Securities is issued, or modified in any such supplemental indenture):
(i) failure to pay interest when due on any Indenture Security of such
series, continued for 30 days;
(ii) failure to pay principal or premium, if any, when due on any
Indenture Security of such series;
(iii) failure to perform any other covenant of Con Edison in the Indenture
or the Indenture Securities of such series (other than a covenant
included in the Indenture
13
or the Indenture Securities solely for the benefit of
series of Indenture Securities other than such series),
continued for 60 days after written notice from the Trustee or the
holders of 25% or more in aggregate principal amount of the
Indenture Securities of such series outstanding thereunder;
(iv) certain events of bankruptcy, insolvency or reorganization; and
(v) any other Event of Default as may be specified for such series.
(Section 6.01)
The Indenture provides that the holders of a majority in aggregate
principal amount of the Indenture Securities of any series outstanding
thereunder may, subject to certain exceptions, direct the time, method and place
of conducting any proceeding for any remedy available to, or exercising any
power or trust conferred upon, the Trustee with respect to Indenture Securities
of such series and may on behalf of all holders of Indenture Securities of such
series waive any past default and its consequences with respect to Indenture
Securities of such series, except a default in the payment of the principal of
or premium, if any, or interest on any of the Indenture Securities of such
series. (Section 6.06)
Holders of Indenture Securities of any series may not institute any
proceeding to enforce the Indenture unless the Trustee thereunder shall have
refused or neglected to act for 60 days after a request and offer of
satisfactory indemnity by the holders of 25% or more in aggregate principal
amount of the Indenture Securities of such series outstanding thereunder, but
the right of any holder of Indenture Securities of any series to enforce payment
of principal of or premium, if any, or interest on the holder's Indenture
Securities when due shall not be impaired. (Section 6.04)
The Trustee is required to give the holders of Indenture Securities
of any series notice of defaults with respect to such series (Events of Default
summarized above, exclusive of any grace period and irrespective of any
requirement that notice of default be given) as to which it has received written
notice within 90 days after the happening thereof, unless cured before the
giving of such notice, but, except for defaults in payments of principal of,
premium, if any, or interest on the Indenture Securities of such series, the
Trustee may withhold notice if and so long as it determines in good faith that
the withholding of such notice is in the interests of such holders. (Section
6.07)
Con Edison is required to deliver to the Trustee each year an
Officers' Certificate stating whether such officers have obtained knowledge of
any default by Con Edison in the performance of certain covenants and, if so,
specifying the nature thereof.
(Section 4.06)
14
Concerning the Trustee: The Indenture provides that the Trustee
shall, prior to the occurrence of any Event of Default with respect to the
Indenture Securities of any series and after the curing or waiving of all Events
of Default with respect to such series which have occurred, perform only such
duties as are specifically set forth in the Indenture and no implied covenants
or obligations shall be read into the Indenture against the Trustee. During the
existence of any Event of Default with respect to the Indenture Securities of
any series, the Trustee shall exercise such of the rights and powers vested in
it under the Indenture with respect to such series and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. (Section 7.01)
The Trustee may acquire and hold Indenture Securities and, subject
to certain conditions, otherwise deal with Con Edison as if it were not Trustee
under the Indenture.
(Section 7.04)
JPMorgan Chase Bank, which is the Trustee under the Indenture, is a
participating bank under Con Edison's revolving credit agreements, and is a
depository for funds and performs other services for, and transacts other
banking business with, Con Edison in the normal course of business.
Satisfaction and Discharge of Indenture; Defeasance: The Indenture
may be discharged upon payment of the principal of, premium, if any, and
interest on all the Indenture Securities and all other sums due under the
Indenture. In addition, the Indenture provides that if, at any time after the
date of the Indenture, Con Edison, if so permitted with respect to Indenture
Securities of a particular series, shall deposit with the Trustee, in trust for
the benefit of the holders thereof, (i) funds sufficient to pay, or (ii) such
amount of obligations issued or guaranteed by the United States of America as
will, or will together with the income thereon without consideration of any
reinvestment thereof, be sufficient to pay all sums due for principal of,
premium, if any, and interest on the Indenture Securities of such series, as
they shall become due from time to time, and certain other conditions are met,
the Trustee shall cancel and satisfy the Indenture with respect to such series
to the extent provided therein. (Sections 12.01 and 12.02) The prospectus
supplement describing the Indenture Securities of such series will more fully
describe the provisions, if any, relating to such cancellation and satisfaction
of the Indenture with respect to such series.
Reports Furnished Securityholders: Con Edison will furnish the
holders of Indenture Securities copies of all annual financial reports
distributed to its stockholders generally as soon as practicable after the
mailing of such material to the stockholders.
(Section 4.07)
15
DESCRIPTION OF PREFERRED SHARES
Con Edison's authorized capital stock includes 6,000,000 Preferred
Shares, of which no shares have been issued. Con Edison's Board of Directors is
authorized from time to time to issue the Preferred Shares as Preferred Shares
of any series and, in connection with the creation of each such series, to fix
by the resolution or resolutions providing for the issuance thereof the number
of shares of such series and the designations, relative rights, preferences and
limitations (including dividend, liquidation and voting rights, preferences and
limitations) of such series to the full extent permitted by the law of the State
of New York, except that holders of the Preferred Shares shall not be entitled
to more than one vote for each Preferred Share held. Reference is made to the
prospectus supplement relating to the series of Preferred Shares offered for the
number of shares, designations, relative rights, preferences and limitations of
such series.
DESCRIPTION OF COMMON SHARES
Con Edison's authorized capital stock consists of 500,000,000 Common
Shares, of which 226,796,139 shares were issued and outstanding as of March 29,
2003, and the Preferred Shares discussed above under "Description of Preferred
Shares."
The following description of the Common Shares does not purport to be
complete and is subject to, and qualified in its entirety by reference to Con
Edison's Restated Certificate of Incorporation.
Dividends. Subject to any prior rights of Preferred Shares (if any should
become outstanding), Common Shares are entitled to dividends when, as and if
declared by Con Edison's Board of Directors, and Con Edison may purchase or
otherwise acquire outstanding Common Shares out of funds legally available
therefor.
Liquidation Rights. Subject to any prior rights of Preferred Shares (if any
should become outstanding), upon liquidation of Con Edison, any remaining net
assets of Con Edison are distributable pro rata to the holders of Common Shares.
Voting Rights. Holders of Common Shares are entitled to one vote for each
share. There are no cumulative voting rights. Holders of Preferred Shares shall
have no voting rights unless, in connection with the issuance of Preferred
Shares, Con Edison's Board of Directors provides voting rights (in which event
the voting rights shall not be more than one vote for each Preferred Share held)
or unless otherwise required by law.
No Preemptive Rights. Holders of the Common Shares are not entitled to
preemptive rights.
Transfer Agent and Registrar. The transfer agent and registrar for the
Common Shares is The Bank of New York Investor Relations Department, P.O. Box
11258, Church Street Station, New York, NY 10286-1258.
Certain provisions of Con Edison's Restated Certificate of Incorporation
and by-laws and New York law may have the effect of encouraging persons
considering unsolicited tender offers or unilateral takeover proposals for Con
Edison to negotiate with the Board of Directors and could thereby have an effect
of delaying, deferring or preventing a change in control of Con Edison. These
provisions include:
16
Authorized But Unissued Shares. As of March 29, 2003, 249,993,161 Common
Shares and 6,000,000 Preferred Shares were authorized but unissued and
23,210,700 shares were held by Con Edison or Con Edison of New York as treasury
shares. Such shares could be issued without stockholder approval in transactions
that might prevent or render more difficult or costly the completion of a
takeover transaction. In this regard, Con Edison's Restated Certificate of
Incorporation grants the Board of Directors, broad corporate power to establish
the rights and preferences of preferred stock, one or more classes or series of
which could be issued which would entitle holders to exercise rights which could
have the effect of impeding a takeover, including rights to convert or exchange
the stock into Common Shares or other securities or to demand redemption of the
stock at a specified price under prescribed circumstances related to a change of
control.
Advance Notice By-law. Under Con Edison's by-laws, written notice of any
proposal to be presented by any stockholder or any person to be nominated by any
stockholder for election as a director must be received by Con Edison's
Secretary at Con Edison's principal executive offices not less than 70 nor more
than 90 days prior to the anniversary of the preceding year's annual meeting;
provided, however, that if the date of the annual meeting as first publicly
announced or disclosed (in a public filing or otherwise) is less than 80 days
prior to the date of the meeting, such notice shall be given not more than ten
days after such date is first so announced or disclosed.
Section 912. Con Edison is subject to Section 912 of the New York
Business Corporation Law. Accordingly, Con Edison may not engage in a business
combination, such as a merger, consolidation, recapitalization, asset sale or
disposition of stock, with any "interested shareholder" for a period of five
years from the date that the interested shareholder first became an interested
shareholder unless:
o the business combination, or the acquisition of stock that resulted in the
interested shareholder first becoming an interested shareholder, was
approved by Con Edison's Board of Directors prior to the interested
shareholder becoming an interested shareholder;
o the business combination is approved by the disinterested shareholders at
a meeting of Con Edison's shareholders called no earlier than five years
after the date that the interested shareholder first became an interested
shareholder; or
o the business combination meets certain "fair price" valuation
requirements.
An "interested shareholder" is any person that is the beneficial owner
of 20% or more of the outstanding voting stock of Con Edison or is an affiliate
or associate of Con Edison that at any time during the prior five years was the
beneficial owner, directly or indirectly, of 20% or more of the then outstanding
voting stock of Con Edison.
17
PLAN OF DISTRIBUTION
Con Edison will offer the Securities through one or more
underwriters. The names of the managing underwriter or underwriters and any
other underwriters, and the terms of the transaction, including compensation of
the underwriters and dealers, if any, will be set forth in the prospectus
supplement relating to the offering of the Securities. Only underwriters named
in a prospectus supplement will be deemed to be underwriters in connection with
the Securities described therein. Firms not so named will have no direct or
indirect participation in the underwriting of such Securities, although such a
firm may participate in the distribution of such Securities under circumstances
entitling it to a dealer's commission. It is anticipated that any underwriting
agreement pertaining to any Securities will (1) entitle the underwriters to
indemnification by Con Edison against certain civil liabilities under the
Securities Act of 1933, as amended, or to contribution for payments the
underwriters may be required to make in respect thereof, (2) provide that the
obligations of the underwriters will be subject to certain conditions precedent,
and (3) provide that the underwriters generally will be obligated to purchase
all such Securities if any are purchased. The underwriters or affiliated
companies may engage in transactions with, or perform services for, Con Edison
and its affiliates in the ordinary course of business.
In connection with an offering made hereby, the underwriters may
purchase and sell the Securities in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover short
positions created by the underwriters in connection with an offering.
Stabilizing transactions consist of certain bids or purchases for the purpose of
preventing or delaying a decline in the market price of the Securities, and
short positions created by the underwriters involve the sale by the underwriters
of more Securities than they are required to purchase from Con Edison. The
underwriters also may impose a penalty bid, whereby selling concessions allowed
to broker-dealers in respect of the Securities sold in the offering may be
reclaimed by the underwriters if such Securities are repurchased by the
underwriters in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Securities,
which may be higher than the price that might otherwise prevail in the open
market; and these activities, if commenced, may be discontinued at any time.
These transactions may be affected in the over-the-counter market or otherwise.
The anticipated date of delivery of the Securities will be as set
forth in the prospectus supplement relating to the offering of the Securities.
LEGAL MATTERS
The validity of the Securities and certain other related legal
matters will be passed upon for Con Edison by Peter A. Irwin, Esq., Vice
President - Legal Services of Con Edison's principal subsidiary, Con Edison of
New York, acting as counsel for Con Edison. Certain legal matters in connection
with the Securities will be passed upon for the underwriters by Dewey
Ballantine LLP, 1301 Avenue of the Americas, New York, New York 10019-6092.
Dewey Ballantine LLP has from time to time performed legal services for
affiliates of Con Edison.
18
EXPERTS
The consolidated financial statements incorporated in this
prospectus by reference to Con Edison 's Annual Report on Form 10-K for the year
ended December 31, 2003, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable by Registrant for the sale of the Securities are
estimated as follows:
Securities and Exchange Commission
registration fee......................................... $92,601
Printing costs............................................. 40,000
Services of independent accountants........................ 130,000
Fees and expenses of Trustee .............................. 40,000
Rating agency fees ........................................ 200,000
Stock exchange listing fees ............................... 50,000
Miscellaneous.............................................. 47,399
-------
Total.................................................... $600,000
---------------
Item 15. Indemnification of Directors and Officers.
Reference is made to Sections 721 to 725 of the New York Business
Corporation Law ("NYBCL") which provide for indemnification of directors and
officers, subject to certain limitations, for liabilities and expenses in
connection with actions or proceedings involving them in such capacity. Pursuant
to Section 721 of the NYBCL, no indemnification shall be made to or on behalf of
a director or officer if a judgment or other final adjudication adverse to the
director or officer establishes that his or her acts were committed in bad faith
or were the results of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally entitled.
Section 402(b) of the NYBCL permits a certificate of incorporation to set forth
a provision limiting or eliminating the personal liability of directors to a
corporation or its shareholders for damages for any breach of duty in such
capacity, provided that no such provision shall eliminate or limit the liability
of a director (i) if a judgment or other final adjudication adverse to him or
her establishes that his or her acts were in bad faith or involved intentional
misconduct or a knowing violation of law or (ii) that he or she personally
gained in fact a financial profit or other advantage to which he or she was not
legally entitled, or (iii) in certain other cases specified in Section 719 of
the NYBCL.
II-1
Article SIXTH of Registrant's Restated Certificate of Incorporation
provides that, except to the extent limitation of liability or indemnification
is not permitted by applicable law: (i) a director or officer of the Registrant
shall not be liable to the Registrant or any of its shareholders for damages for
any breach of duty in such capacity, and (ii) the Registrant shall fully
indemnify any person made, or threatened to be made a party to an action or
proceeding, whether civil or criminal, including an investigative,
administrative or legislative proceeding, and including an action by or in the
right of the Registrant or any other enterprise, by reason of the fact that the
person is or was a director or officer of the Registrant, or is or was serving
at the request of the Registrant any other enterprise as a director, officer or
in any other capacity, against any and all damages incurred as a result of or in
connection with such action or proceeding or any appeal thereof and, except in
the case of an action or proceeding specifically approved by the Board of
Directors of the Registrant, the Registrant shall pay expenses incurred by or on
behalf of such person in defending such action or proceeding or any appeal
thereof in advance of the final disposition thereof promptly upon receipt by the
Registrant, from time to time, of a written demand of the person for the
advancement, together with an undertaking by or on behalf of the person to repay
any expenses so advanced to the extent that the person is ultimately found not
to be entitled to indemnification for the expenses.
As permitted by Section 726 of the NYBCL, Registrant has insurance (a)
to indemnify Registrant for obligations it incurs for indemnification of its
directors and officers, and (b) to indemnify directors and officers of
Registrant for losses, costs and expenses incurred by them in actions brought
against them in connection with their acts as directors or officers for which
they are not indemnified by Registrant. Pursuant to Section 726 of the NYBCL, no
insurance payment, other than cost of defense, may be made to any director or
officer if a judgment or other final adjudication adverse to the director or
officer establishes that his or her acts of active and deliberate dishonesty
were material to the cause of action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. Registrant may also purchase insurance coverage
insuring the directors and officers of Registrant against certain liabilities
that could arise in connection with administration of Registrant's employee
benefit plans.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of Registrant pursuant to the foregoing provisions, or
otherwise, Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Registrant
of expenses incurred or paid by a director, officer or controlling person of
Registrant in the successful defense of any action, suit or proceeding) is
asserted against Registrant by such director, officer or controlling person in
connection with the securities being registered, Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
Section 7 of Registrant's Underwriting Agreement Basic Provisions (Exhibit
1.2 to this Registration Statement) provides for indemnification of the
Registrant's directors and officers who signed the Registration Statement by the
underwriters against certain liabilities which might arise under the Act or
otherwise from certain written information furnished to Registrant by or on
behalf of the underwriters.
Item 16. List of Exhibits.
See "Index to Exhibits" on page II- 6.
II-3
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) See the penultimate paragraph of Item 15.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York and State of New York on the 5th day of
April, 2004.
Consolidated Edison, Inc.
By /s/ Joan S. Freilich
Joan S. Freilich
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title
Eugene R. McGrath* Chairman of the Board of Directors,
President and Chief Executive Officer and
Director (Principal Executive Officer)
Joan S. Freilich* Executive Vice President and Chief
Financial Officer and Director
(Principal Financial Officer)
Edward J. Rasmussen* Vice President and Controller
(Principal Accounting Officer)
George Campbell, Jr.* Director
Vincent A. Calarco* Director
Gordon J. Davis* Director
Michael J. DelGiudice* Director
Ellen V. Futter* Director
Sally Hernandez-Pinero* Director
Peter W. Likins* Director
Frederic V. Salerno* Director
Richard A. Voell* Director
Stephen R. Volk* Director
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* Joan S. Freilich, pursuant to Powers of Attorney (executed by each of the
officers and Directors listed above, and filed as Exhibit 24 hereto), by signing
her name hereto does hereby sign and execute this Registration Statement on
behalf of each of the officers and Directors named above and indicated as
signing above in the capacities in which the name of each appears above.
/s/ Joan S. Freilich
April 5, 2004 Joan S. Freilich
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
1.1 - Form of Underwriting Agreement.
1.2 - Underwriting Agreement Basic Provisions, dated April 5, 2004.
4.1 - Indenture, dated as of April 1, 2002, between Consolidated Edison,
Inc. ("Con Edison ") and JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as Trustee. (Incorporated by reference
to Exhibit 4.1 to Registration Statement No. 333-102005.)
4.2 - Restated Certificate of Incorporation of Con Edison. (Incorporated
by reference to Exhibit 3.1 to Registration
Statement No. 333-39165.)
5 - Opinion and consent of Peter A. Irwin, Esq., Vice President - Legal
Services of Con Edison's principal subsidiary, Con
Edison of New York.
12.1 - Schedule of computation of ratio of earnings to fixed charges for
the years ended December 31, 2003, 2002, 2001, 2000, and 1999.
(Incorporated by reference to Exhibit 12.1 to Con Edison's
Annual Report on Form 10-K for the year ended
December 31, 2003 -- Commission File No. 1-14514.)
23.1 - Consent of PricewaterhouseCoopers LLP.
23.2 - Consent of Peter A. Irwin, Esq., Vice President - Legal
Services of Con Edison's principal subsidiary, Con Edison of
New York (included as part of Exhibit 5).
24 - Powers of Attorney.
25 - Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as Trustee.