SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: July 22, 2003
Commission Exact name of registrant as specified in its charter State of I.R.S. Employer
File Number and principal office address and telephone number Incorporation I.D. Number
1-14514 Consolidated Edison, Inc. New York 13-3965100
4 Irving Place, New York, New York 10003
(212) 460-4600
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INFORMATION TO BE INCLUDED IN THE REPORT
ITEM 5. OTHER EVENTS
On July 22, 2003, Consolidated Edison, Inc. (the "Company") entered into (i) an
underwriting agreement with Citigroup Global Markets Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as representatives for the underwriters
named therein for the sale of $200 million aggregate principal amount of the
Company's 3.625% Debentures, Series 2003 A (the "2003 A Debentures"). The 2003 A
Debentures were registered under the Securities Act of 1933 pursuant to
Registration Statement on Form S-3 (No. 333-102005, declared effective January
17, 2003) relating to $775,000,000 aggregate principal amount of unsecured debt
securities of the Company, of which $275 million has been carried over from
Registration Statement No. 333-72264. Copies of the underwriting agreement and
the definitive form of the Debentures are filed as exhibits to this report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
See Exhibit Index.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CONSOLIDATED EDISON, INC.
By /s/ Edward J. Rasmussen
Edward J. Rasmussen
Vice President and Controller
DATE: July 25, 2003
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Index to Exhibits
Sequential Page
Number at which
Exhibit Description Exhibit Begins
1 Underwriting Agreement relating to the 2003 A Debentures.
4 Form of the 2003 A Debentures.
UNDERWRITING AGREEMENT
July 22, 2003
To the Representatives Named
on the Signature Page Hereof:
Dear Sirs:
Subject to the terms and conditions stated or incorporated by reference herein,
Consolidated Edison, Inc. (the "Company") hereby agrees to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") and the
Underwriters hereby agree to purchase, severally and not jointly, the principal
amount set forth opposite their names in Schedule I hereto of the securities
specified in Schedule II hereto (the "Designated Securities").
The representatives named on the signature page hereof (the "Representatives")
represent that the Underwriters have authorized the Representatives to enter
into this Underwriting Agreement and to act hereunder on their behalf.
Except as otherwise provided in Schedule II hereto each of the provisions of the
Company's Underwriting Agreement Basic Provisions, dated October 25, 2001, as
filed as Exhibit 1.2 to Registration Statement No. 333-72264 (the "Basic
Provisions"), is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein. Unless otherwise defined herein, terms
defined in the Basic Provisions are used herein as therein defined.
Payment for the Designated Securities will be made against delivery thereof to
the Representatives for the accounts of the respective Underwriters at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto.
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If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the Basic Provisions incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
Very truly yours,
CONSOLIDATED EDISON, INC.
By: /s/ Robert P. Stelben
Robert P. Stelben
Vice President and Treasurer
Confirmed and Accepted as of the date hereof on behalf of itself and each other
Underwriter, if any:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Howard Hiller
Name: Howard Hiller
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Karl Newlin
Name: Karl Newlin
Title Vice President
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
Citigroup Global Markets Inc. $54,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 54,000,000
Banc One Capital Markets, Inc. 11,000,000
BNY Capital Markets, Inc. 11,000,000
Goldman, Sachs & Co. 11,000,000
HSBC Securities (USA) Inc. 11,000,000
J.P. Morgan Securities Inc. 11,000,000
Lehman Brothers Inc. 11,000,000
Mellon Financial Markets, LLC 11,000,000
Morgan Stanley & Co. Incorporated 11,000,000
Loop Capital Markets, LLC 2,000,000
The Williams Capital Group, L.P. 2,000,000
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Total $200,000,000
SCHEDULE II
Title of Designated Securities:
3.625% Debentures, Series 2003 A
Aggregate principal amount:
$200,000,000
Price to Public:
Initially 99.872% of the principal amount of the Designated Securities,
plus accrued interest, if any, from July 25, 2003 to the date of
delivery, thereafter at market prices prevailing at the time of sale or
at negotiated prices.
Purchase Price by Underwriters:
99.272% of the principal amount of the Designated Securities, plus
accrued interest, if any, from July 25, 2003 to the date of delivery.
Specified funds for, and manner of, payment of purchase price:
Funds will be delivered by wire transfer pursuant to the Company's
written instructions to the Representatives.
Indenture:
Indenture, dated as of April 1, 2002, between the Company and JPMorgan
Chase Bank, as Trustee.
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Maturity:
August 1, 2008
Interest Rate:
As set forth in the prospectus supplement, dated July 22, 2003, for the
Designated Securities (the "Prospectus Supplement") to the prospectus,
dated January 17, 2003 (the "Prospectus"), filed with the Securities and
Exchange Commission (the "SEC") pursuant to Rule 424(b)(2) under the
Securities Act of 1933, as amended, in connection with the Company's
Registration Statement on Form S-3 (No. 333-102005, declared effective
by the SEC on January 17, 2003).
Interest Payment Dates:
As set forth in the Prospectus Supplement.
Redemption Provisions:
As set forth in the Prospectus Supplement.
Sinking Fund Provisions:
None.
Time of Delivery:
10:00 a.m., on July 25, 2003.
Closing Location:
Room 1810-S at the Company, 4 Irving Place, New York, NY 10003.
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Information furnished by or on behalf of the Underwriters for use in the
Prospectus for the Designated Securities:
1. The sentence regarding delivery of the Designated Securities on the
front cover of the Prospectus Supplement
2. The second and third paragraphs, the third and fourth sentences of the
fourth paragraph, and the fifth, sixth and seventh paragraphs of the
section entitled "Underwriting" beginning on page S-9 of the Prospectus
Supplement.
Addresses of Representatives:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: Henry A. Clark III
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center, 24th Floor
New York, New York 10080
Attention: Karl Newlin
Captions in the Prospectus and Prospectus Supplement referred to in Section
6(c)(xi) of the Basic Provisions:
Description of Debt Securities
Description of Debentures
Modification of Basic Provisions
A. Throughout the Basic Provisions, change all references to "Representative" to
"Representatives."
B. In the first Section 1:
1. In subsection (d), add at the end thereof "(a "Material Adverse
Effect")".
2. Add after subsection (m):
"(n) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933
Act) (each, a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification
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is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and is
validly issued, fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary.
(o) The documents incorporated by reference in the
prospectus do not include non-GAAP financial measures within the
meaning of Regulation G or Item 10 of Regulation S-K of the
Commission."
C. Change to Section 2 the number of the second Section 1, increase by one
the number of, and references to, each of the remaining Sections, and
revise Section 2 to read in its entirety:
"Upon the execution of the Underwriting Agreement, the several
Underwriters propose to offer the Designated Securities for sale
upon the terms and conditions set forth in the Prospectus".
D. In Section 4: add after subsection (e):
"(f) The Company will use the net proceeds received by it from
the sale of the Designated Securities in the manner specified in
the Prospectus under "Use of Proceeds".
E. In Section 6:
1. Revise subsection (c)(vii) to read:
"The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture and this Underwriting
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under, (i) any statute, agreement or instrument known to him to
which the Company or any Subsidiary is a party or by which it or
any Subsidiary is bound or to which any of the property of the
Company or of any Subsidiary is subject, (ii) any order, rule or
regulation known to him of any court, governmental agency or body
having jurisdiction over the Company or any of its properties,
except in each of (i) or (ii) for such conflicts, defaults or
breaches as would not have a Material Adverse Effect, or (iii)
the Certificate of Incorporation or the Company's by-laws;"
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2. Add the following subsections to Section 6(c) after subsection (xii):
"(xiii) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise described in the Prospectus,
all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and is validly issued, fully
paid and non-assessable and, to the best of our knowledge, is
owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of
capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any securityholder of such
Subsidiary;
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company
and public officials."
F. Add a new Section 18:
"18. Notwithstanding any other provision of this Underwriting
Agreement, from the commencement of discussions with respect to
the transactions contemplated hereby, the Company (and each
employee, representative or other agent of the Company) may
disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure (as such terms are used in
Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury
Regulations promulgated thereunder) of the transactions
contemplated by this Underwriting Agreement and all materials of
any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure."
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment 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 OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
Consolidated Edison, Inc.
3.625% DEBENTURES, SERIES 2003 A
INTEREST RATE MATURITY DATE CUSIP
3.625% per annum August 1, 2008 209115 AB 0
REGISTERED HOLDER: Cede & Co.
PRINCIPAL SUM: TWO HUNDRED MILLION DOLLARS ($200,000,000)
CONSOLIDATED EDISON, INC., a New York corporation (hereinafter called
the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to the
registered holder named above or registered assigns, on the maturity date stated
above, unless redeemed prior thereto as hereinafter provided, the principal sum
stated above and to pay interest thereon from July 25, 2003, or from the most
recent interest payment date to which interest has been duly paid or provided
for, initially on February 1, 2004 and thereafter semi-annually on February 1
and August 1 of each year, at the interest rate stated above, until the date on
which payment of such principal sum has been made or duly provided for. The
interest so payable on any interest payment date will be paid to the person in
whose name this Debenture is registered at the close of business on the
fifteenth day of the month preceding the interest payment date, except as
otherwise provided in the Indenture.
The principal of this Debenture, when due and payable, shall, upon
presentation and surrender hereof, be paid at the principal office of the
Company. The interest on this Debenture, when due and payable, shall be paid at
the principal office of the Company, or at the option of the Company, by check
mailed to the address of the registered holder hereof or registered assigns as
such address shall appear in the Security Register. All such payments shall be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
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This Debenture is one of a duly authorized series of an issue of
unsecured debt securities of the Company designated as its 3.625% Debentures,
Series 2003 A (hereinafter called the "Debentures"), issued and to be issued
under an Indenture dated as of April 1, 2002 (hereinafter called the
"Indenture"), between the Company and JPMorgan Chase Bank, Trustee (hereinafter
called the "Trustee", which term includes any successor trustee under the
Indenture). Reference is made to the Indenture and any supplemental indenture
thereto for the provisions relating, among other things, to the respective
rights of the Company, the Trustee and the holders of the Debentures, and the
terms on which the Debentures are, and are to be, authenticated and delivered.
The Company may redeem the Debentures in whole or in part, at its option
at any time, at a redemption price equal to the greater of (1) 100% of the
principal amount of the Debentures being redeemed or (2) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
(exclusive of interest accrued to the date of redemption) discounted to the
redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 15 basis
points, plus accrued interest on the principal amount being redeemed to the
redemption date.
"Comparable Treasury Issue" means the United States Treasury security or
securities selected by an Independent Investment Banker (as defined below) as
having an actual or interpolated maturity comparable to the remaining term of
the Debentures being redeemed 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 to the remaining term of such
Debentures.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations (as defined below)
for such redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers (as defined below) appointed by the Trustee after consultation with the
Company.
"Reference Treasury Dealer" means each of Citigroup Global Markets Inc.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, their respective
successors, and two other primary U.S. Government securities dealers in The City
of New York (each a "Primary Treasury Dealer") selected by the Company. If any
Reference Treasury Dealer shall cease to be a Primary Treasury Dealer, the
Company will substitute another Primary Treasury Dealer for that dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any 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 3:30 p.m. New York
time on the third business day preceeding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity or interpolated (on a
day count basis) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
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Unless the Company defaults in payment of the redemption price, on and
after the redemption date interest will cease to accrue on the Debentures or
portions thereof called for redemption.
If an Event of Default (as defined in the Indenture) shall have occurred
and be continuing with respect to the Debentures, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with such effect and subject to the conditions provided in the
Indenture. Any such declaration may be rescinded by holders of a majority in
principal amount of the outstanding Debentures if all Events of Default with
respect to the Debentures (other than the non-payment of principal of the
Debentures which shall have become due by such declaration) shall have been
remedied.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time outstanding, evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to the Indenture or to any supplemental indenture with respect to the
Debentures, or modifying in any manner the rights of the holders of the
Debentures; provided, however, that no such supplemental indenture shall (i)
extend the maturity of any Debenture, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or make the
principal thereof, or interest thereon, payable in any coin or currency other
than that in the Debentures provided, without the consent of the holder of each
Debenture so affected, or (ii) reduce the aforesaid principal amount of
Debentures, the holders of which are required to consent to any such
supplemental indenture without the consent of the holders of all Debentures then
outstanding.
The Debentures are issuable as registered Debentures only, in the
denomination of $1000 and any integral multiples of $1000 approved by the
Company, such approval to be evidenced by the execution thereof.
This Debenture is transferable by the registered holder hereof in person
or by his attorney duly authorized in writing on the books of the Company at the
office or agency to be maintained by the Company for that purpose, but only in
the manner, subject to the limitations and upon payment of any tax or
governmental charge for which the Company may require reimbursement as provided
in the Indenture, and upon surrender and cancellation of this Debenture. Upon
any registration of transfer, a new registered Debenture or Debentures, of
authorized denomination or denominations, and in the same aggregate principal
amount, will be issued to the transferee in exchange therefor.
The Company, the Trustee, any paying agent and any Security registrar
may deem and treat the registered holder hereof as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notations of ownership or other 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 as herein provided 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.
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No recourse shall be had for the payment of the principal of or interest
on this Debenture, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator or against any past, present or future
stockholder, officer or member of the Board of Directors, as such, of the
Company, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
This Debenture shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with the laws of the State of New York.
All terms used in this Debenture which are defined in the Indenture and
not defined herein shall have the meanings assigned to them in the Indenture.
This Debenture shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose until the certificate of
authentication on the face hereof is manually signed by the Trustee.
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IN WITNESS WHEREOF, the Company has caused this Debenture to be signed
by the manual or facsimile signatures of an Executive Vice President and the
Treasurer of the Company, and a facsimile of its corporate seal to be affixed or
reproduced hereon.
CONSOLIDATED EDISON, INC.
By
Executive Vice President and Chief Financial Officer
By
Vice President and Treasurer
SEAL
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein issued under the
Indenture described herein.
JPMORGAN CHASE BANK,
as Trustee
By
Authorized Officer
Dated: July 25, 2003