<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 28, 1995
REGISTRATION NO. 33-56349
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
NEW YORK 14-0555980
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
(914) 452-2000
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN E. MACK III, CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
(914) 486-5239
OR
WILLIAM P. REILLY, ASSISTANT SECRETARY
ONE CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005-1401
(212) 344-5680
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copies of all communications to:
DAVID P. FALCK, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004-1490
(COUNSEL FOR THE UNDERWRITERS)
(212) 858-1438
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AMENDING the Prospectus, Item 16, Exhibit (5), Exhibit (12), Exhibit (23)(a),
Exhibit (23)(b) and Exhibit (27) and supplying Exhibit (24.1).
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective, when warranted by
market conditions and other factors.
------------------------
If the only securities being 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, check the following box. /X/
AMENDMENT FILED IN ACCORDANCE WITH RULE 473(a)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities
laws of any such State.
PRELIMINARY PROSPECTUS DATED MARCH 28, 1995
PROSPECTUS
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
$80,000,000
OF
DEBT SECURITIES
AND/OR
COMMON STOCK
(PAR VALUE $5.00 PER SHARE)
AND
250,000 SHARES
OF
CUMULATIVE PREFERRED STOCK
(PAR VALUE $100 PER SHARE)
WHICH MAY BE ISSUED AS
1,000,000 SHARES
OF
DEPOSITARY PREFERRED SHARES
EACH REPRESENTING 1/4
OF A SHARE OF SUCH
CUMULATIVE PREFERRED STOCK
Central Hudson Gas & Electric Corporation ("Company") may offer from time
to time: (i) its Debt Securities ("Debt Securities"), consisting of its First
Mortgage Bonds ("New Bonds") and/or Unsecured Notes ("Unsecured Notes"); (ii)
its Cumulative Preferred Stock, par value $100 per share ("New Preferred
Stock"); and (iii) its Common Stock, par value $5.00 per share ("Additional
Common Stock"), each in amounts, at prices and on terms to be determined at the
time or times of sale. The New Bonds, Unsecured Notes, New Preferred Stock and
Additional Common Stock may be issued in one or more series or issuances. The
aggregate initial offering price of the Debt Securities and the Additional
Common Stock will not exceed $80,000,000 and the aggregate initial offering
price of shares of the Additional Common Stock will not exceed $40,000,000. The
number of shares of New Preferred Stock will not exceed 250,000. The New Bonds,
Unsecured Notes, New Preferred Stock and Additional Common Stock are
collectively referred to herein as the "Securities."
For each offering of Securities for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement ("Prospectus
Supplement") that sets forth, (i) with respect to the Debt Securities, the
specific series designation, aggregate principal amount, rate (or method of
calculation) and time of payment of interest, initial public offering price,
maturity, repayment, redemption or repurchase terms, if any, credit enhancement,
if any, and other specific terms, if any, of the series of the Debt Securities
in respect of which this Prospectus and such Prospectus Supplement is being
delivered ("Offered Bonds", in the case of the New Bonds, or "Offered Notes," in
the case of the Unsecured Notes); (ii) with respect to New Preferred Stock, the
number of shares, the specific title and series, any dividend, liquidation or
redemption terms, the dividend payment dates, whether and to what extent the New
Preferred Stock may be offered in the form of depositary preferred shares, each
representing ownership of 1/4 of a share of New Preferred Stock ("Depositary
Preferred Shares"), and whether application will be made to list any such
Depositary Preferred Shares on the New York Stock Exchange, the initial public
offering price and other specific terms, if any, of the series of New Preferred
Stock in respect of which this Prospectus and such Prospectus Supplement is
being delivered; (iii) and with respect to Additional Common Stock, the number
of shares, the initial public offering price and the other specific terms, if
any, of the offering thereof in respect of which this Prospectus and such
Prospectus Supplement is being delivered. See "Description of the New Bonds,"
"Description of the Unsecured Notes," "Description of New Preferred Stock,"
"Description of Depositary Preferred Shares and Depositary Receipts," and
"Description of Common Stock" under the caption "Securities."
The outstanding shares of Common Stock are, and the Additional Common
Stock, subject to official notice of issuance, will be listed on the New York
Stock Exchange ("NYSE"). See "Securities -- Common Stock Dividends and Price
Range."
The Company may sell the Securities through underwriters or dealers,
directly to one or more purchasers or through agents. The Prospectus Supplement
will set forth the names of such underwriters, dealers or agents, if any, any
applicable commissions or discounts and the net proceeds to the Company from the
sale of the Securities thereby. See "Plan of Distribution," which also describes
possible indemnification arrangements for underwriters and agents.
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THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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THE DATE OF THIS PROSPECTUS IS APRIL , 1995
<PAGE> 3
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AND OTHER SECURITIES OF THE COMPANY AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON
THE NYSE, IN RESPECT OF THE ADDITIONAL COMMON STOCK AND ANY DEPOSITARY PREFERRED
SHARES WHICH MAY BE LISTED ON SUCH EXCHANGE, OR OTHERWISE. SUCH STABILIZATION,
IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 ("1934 Act") and, in accordance therewith, files reports
and other information with the Securities and Exchange Commission
("Commission"). Certain information as of specified dates with respect to the
Company's directors, and certain other information with respect to the
remuneration paid by the Company to its directors and officers and with respect
to interests of management and others in certain transactions with the Company,
is disclosed in proxy statements distributed to shareholders of the Company and
filed by it with the Commission. Such reports, proxy statements and other
information filed with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511 and 7 World Trade Center, 13th Floor, New York, New
York 10048; and copies of such material can also be obtained at prescribed rates
from the Public Reference Section of the Commission at its principal office at
450 Fifth Street, N.W., Washington, D.C. 20549. In addition, certain securities
of the Company are listed on the NYSE, 20 Broad Street, New York, New York
10005, where reports, proxy materials and other information concerning the
Company can also be inspected.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents heretofore filed with the Commission pursuant to the 1934 Act (File
No. 1-3268):
The Company's Annual Report on Form 10-K for the year ended December 31,
1994, as amended by Amendment No. 1 thereto on Form 10-K/A, dated March 28,
1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of this offering made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents"; provided,
however, that the documents enumerated above or subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act in each
year during which the offering made by this Prospectus is in effect prior to the
filing with the Commission of the Company's Annual Report on Form 10-K covering
such year shall not be Incorporated Documents or be incorporated by reference in
this Prospectus or be a part hereof from and after such filing of such Annual
Report on Form 10-K.
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Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Prospectus.
------------------------
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such documents).
Requests for such copies should be directed to Mr. Steven V. Lant, Treasurer and
Assistant Secretary, Central Hudson Gas & Electric Corporation, 284 South
Avenue, Poughkeepsie, New York 12601-4879; telephone number (914) 486-5254.
2
<PAGE> 4
THE COMPANY
The Company was incorporated in 1926 under the Transportation Corporations
Law of the State of New York as a consolidation of several operating utilities
which had been accumulated under one management during the previous 26 years.
The Company supplies electric and gas service in the Mid-Hudson River Valley
region of New York State. The Company's principal executive office is located at
284 South Avenue, Poughkeepsie, New York 12601-4879 and its telephone number is
(914) 452-2000.
Total revenues and operating income before income taxes (expressed as
percentages), derived from electric and gas operations for each of the last
three years, were as follows:
<TABLE>
<CAPTION>
PERCENT OF PERCENT OF OPERATING
TOTAL REVENUES INCOME BEFORE INCOME TAXES
--------------------- --------------------------
ELECTRIC GAS ELECTRIC GAS
-------- ---- -------- ---
<S> <C> <C> <C> <C>
1994........................ 80% 20% 89% 11%
1993........................ 82% 18% 89% 11%
1992........................ 82% 18% 87% 13%
</TABLE>
For the year ended December 31, 1994, the Company served an average of
259,765 electric and 59,475 gas customers. Of the Company's total electric
revenues during that period, approximately 43% was derived from residential
customers, 31% from commercial customers, 19% from industrial customers and 7%
from other utilities and miscellaneous sources. Of the Company's total gas
revenues during that period, approximately 44% was derived from residential
customers, 31% from commercial customers, 4% from industrial customers, 16% from
interruptible customers and 5% from miscellaneous sources (including revenues
from transportation of customer-owned gas).
The Company's largest customer is International Business Machines
Corporation, which accounted for approximately 12% of the Company's total
electric revenues and approximately 6% of its total gas revenues for the year
ended December 31, 1994.
USE OF PROCEEDS
The Company is offering hereby the Securities, in the maximum amounts
described on the cover page of this Prospectus, on terms to be determined when
an agreement or agreements to sell any or all of same are made from time to
time.
As more fully set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Securities, together with funds from operations
and the proceeds of the sale of other securities, may be used by the Company for
(a) the payment of maturing issues of debt securities or the redemption of
outstanding debt securities when such redemptions result in an overall cost
savings to the Company; (b) redemption of one or more series of the Company's
Cumulative Preferred Stock, when such redemptions result in an overall cost
savings to the Company; (c) repaying commercial paper and/or short-term debt
outstanding at any time; and/or (d) financing the expenditures for its
construction program and for other corporate purposes. Excess proceeds, if any,
from the sale of the Securities will be temporarily invested in short-term
instruments pending application to the foregoing purposes. Any specific
securities acquired with the proceeds of sales of any Securities will be set
forth in the Prospectus Supplement relating to such Securities.
The Company estimates it will require additional funds for its construction
program and for other corporate purposes and expects to incur short-term
borrowings and may issue and sell additional securities as needed, in amounts
and of types presently undetermined.
Reference is made to the Incorporated Documents with respect to the
Company's construction program and other significant capital requirements and
its general financing plan and capabilities.
3
<PAGE> 5
RATIOS OF EARNINGS
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for each of the last five
fiscal years is as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------
1990 1991 1992 1993 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges*..................... 2.43 2.70 3.07 3.29 3.38
</TABLE>
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* Year-end figures for 1990, 1991 and 1992 are restated to conform to current
(1993 and 1994) reporting which includes the interest portion of rent expense
as a component of interest charges.
For purposes of this ratio, (i) earnings consist of pretax income from
continuing operations to which fixed charges have been added; and (ii) fixed
charges consist of interest charges on first mortgage bonds, other long-term
debt, short-term debt, other interest charges, amortization of premium and
expense on debt and the portion of rents representative of the interest factor.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Company's ratio of earnings to fixed charges and preferred stock
dividends for each of the last five fiscal years is as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------
1990 1991 1992 1993 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges and Preferred Stock
Dividends+............................................ 2.04 2.22 2.49 2.65 2.74
---- ---- ---- ---- ----
</TABLE>
- ------------
+ Year-end figures for 1990, 1991 and 1992 are restated to conform to current
(1993 and 1994) reporting which includes the interest portion of rent expense
as a component of interest charges.
For purposes of this ratio, (i) earnings consist of pretax income from
continuing operations to which fixed charges have been added; and (ii) fixed
charges consist of interest charges on first mortgage bonds, other long-term
debt, short-term debt, other interest charges, preferred stock dividends,
amortization of premium and expense on debt and the portion of rents
representative of the interest factor. Preferred stock dividend requirements
have been adjusted to reflect the pretax earnings required to cover such
dividend requirements.
SECURITIES
DESCRIPTION OF THE NEW BONDS
General: The New Bonds are to be issued as one or more series of First
Mortgage Bonds ("Mortgage Bonds") under an Indenture of Mortgage, dated as of
January 1, 1927, between the Company and American Exchange Irving Trust Company
(now The Bank of New York), as trustee ("Mortgage Trustee"), as heretofore
supplemented and amended and as to be supplemented by one or more supplemental
indentures relating to the New Bonds. The Indenture of Mortgage, as heretofore
supplemented and amended and as to be supplemented by said supplemental
indenture or indentures, is hereinafter called the "Mortgage." The summaries
herein concerning the New Bonds and the Mortgage do not purport to be complete
and are qualified in their entirety by express reference to the Mortgage.
4
<PAGE> 6
Reference is made to the applicable Prospectus Supplement for the following
terms of the Offered Bonds (among others): (i) the designation and series of the
Offered Bonds; (ii) the percentage or percentages of their principal amount at
which such Offered Bonds will be issued; (iii) the date or dates on which the
Offered Bonds will mature; (iv) the rate or rates at which the Offered Bonds
will bear interest; (v) the times at which such interest will be payable; (vi)
the dates, if any, on which and the price or prices at which the Offered Bonds
will, pursuant to any mandatory sinking fund provisions, or may, pursuant to any
optional sinking fund provisions, be redeemed by the Company, and the other
detailed terms and provisions of such sinking funds; (vii) the date, if any,
after which and the price or prices at which the Offered Bonds will, pursuant to
any optional redemption or repurchase provisions, be redeemable or
repurchaseable at the option of the Company or the holders thereof and the other
detailed terms and provisions of such optional redemptions or repurchases;
(viii) whether the Offered Bonds are to be issued in whole or in part in
book-entry form, and accordingly will be represented by, one or more global
securities and, if so, the identity of the depositary for such global
securities; and (ix) any other special terms or provisions not inconsistent with
the terms of the Mortgage.
Form and Exchangeability: The New Bonds will be issuable only in fully
registered form, without coupons, and will be exchangeable for a like aggregate
principal amount of New Bonds of other authorized denominations of the same
series, unless otherwise specified in the applicable Prospectus Supplement.
The Company shall not be required to make exchanges of the New Bonds for a
period of 15 days next preceding any interest payment date, unless otherwise
specified in the applicable Prospectus Supplement.
In the event that all or substantially all of the properties of the Company
are taken by the power of eminent domain, the Company, except in certain
circumstances described in the Mortgage, is obligated to call all of the
outstanding Mortgage Bonds for redemption at the then applicable redemption
price (or if there is no applicable redemption price, then at 100% of their
principal amount), together with accrued interest to the date fixed for
redemption. Reference is made to the applicable Prospectus Supplement for the
redemption price which shall be applicable to the Offered Bonds in the event
that all or substantially all of the properties of the Company are taken by the
power of eminent domain.
The Mortgage provides that cash on deposit with the Trustee (on account of
or relating to (i) a net deficiency in the annual depreciation or replacement
reserve (as described under "Maintenance and Reserves" below), (ii) proceeds of
insurance, (iii) proceeds of released property, (iv) compensation received for a
partial taking of property by eminent domain, or (v) the basis for the issuance
of additional bonds) in certain circumstances is permitted, or required, to be
applied by the Company or the Trustee to the redemption or purchase of Mortgage
Bonds of any series. The applicable Prospectus Supplement will describe the
extent to which such provisions are applicable to the Offered Bonds, including
the applicable redemption price.
Security and Priority: The New Bonds will rank equally as to security with
the Mortgage Bonds of other series presently outstanding under the Mortgage
(except insofar as a sinking fund established in accordance with the provisions
of the Mortgage may afford additional security for the bonds of any particular
series) which is, in the opinion of Gould & Wilkie, the Company's counsel, a
valid, binding and direct lien on all real estate and property of the Company
(including franchises, easements, rights of way and other rights relating to
real estate) specifically or generally described or referred to in the Mortgage
as subject to the lien thereof and now owned by the Company, subject to no liens
or encumbrances, except (i) taxes for the current year and taxes and assessments
not yet due, (ii) certain encumbrances on easements or rights of way and certain
minor liens and encumbrances, which, in the opinion of said counsel, do not
materially affect the use of such property by the Company in the normal course
of its business, and (iii) any other liens or encumbrances defined in the
Mortgage as "excepted encumbrances." There are no obligations secured by a lien
on the property of the Company outstanding except those issued under the
Mortgage. The Mortgage contains provisions subjecting to the lien thereof such
property and franchises subsequently acquired.
Issuance of Mortgage Bonds: The New Bonds are of a series which is
unlimited in aggregate principal amount, except as otherwise provided in the
Mortgage, and except as may be provided in any subsequent supplemental
indenture. Additional Mortgage Bonds of the same or other series may be issued
under the Mortgage in principal amount unlimited except as aforesaid. Such
additional Mortgage Bonds may be so
5
<PAGE> 7
issued upon the basis (each a "Basis") of (1) 66 2/3% of the "net bondable value
of property additions," as that term is defined in the Mortgage; (2) 66 2/3% of
the amount by which such net bondable value is increased by the retirement or
reduction of "prior lien bonds," as that term is defined in the Mortgage; (3)
cash deposited with the Trustee; or (4) refunding or replacing a like aggregate
principal amount of any Mortgage Bonds theretofore issued under the Mortgage and
then retired.
As a further condition to the issuance of Mortgage Bonds upon the Bases
specified in clauses (1), (2) or (3) of the immediately preceding paragraph, the
Mortgage requires that the Company's "net earnings," as that term is defined in
the Mortgage, for 12 consecutive calendar months within the 15 calendar months
immediately preceding the date when the Mortgage Trustee receives any
application for authentication and delivery of such Mortgage Bonds must exceed
two times the interest charges for one year on (a) all Mortgage Bonds
outstanding under the Mortgage, (b) the Mortgage Bonds then applied for, (c) all
prior lien bonds to be outstanding immediately after the authentication of the
Mortgage Bonds then applied for, and (d) all indebtedness secured by any lien
prior to the lien of the Mortgage if the indebtedness secured thereby has been
assumed by the Company or if the Company customarily pays the interest on such
indebtedness. For the 12 months ended December 31, 1994, such ratio of net
earnings to interest charges was 6.49; and at such date the Company could have
issued $420 million of additional Mortgage Bonds upon the Bases specified in
clauses (1), (2) or (3) above and such "net earnings" limitation, assuming an
annual interest rate of 9%.
The amount of net bondable value of property additions at December 31, 1994
was approximately $230 million. Therefore, the amount of additional Mortgage
Bonds issuable with respect thereto upon the Basis specified in clause (1) above
was approximately $153 million. In addition, at December 31, 1994, approximately
$353 million of additional Mortgage Bonds could have been issued upon the Basis
specified in clause (4) above, against Mortgage Bonds which have been retired.
Accordingly, as of December 31, 1994, the Company could have issued under
the applicable Bases and the "net earnings" limitation an aggregate of
approximately $506 million principal amount of additional Mortgage Bonds.
Cash deposited with the Mortgage Trustee against the issuance of Mortgage
Bonds may be withdrawn to the extent of 66 2/3% of the net bondable value of
property additions. At December 31, 1994, no cash was on deposit with the
Mortgage Trustee under said provision.
Reference is made to the applicable Prospectus Supplement for the Basis or
Bases under the Mortgage upon which the Offered Bonds are to be issued.
Maintenance and Reserves: The Company covenants to maintain the trust
estate (property subject to the lien of the Mortgage) in first class operating
condition. Upon demand by the Trustee on the written request of the holders of
at least 2% in principal amount of outstanding Mortgage Bonds, the Company shall
cause an independent engineer to examine the trust estate, and, if in the
opinion of such independent engineer, the trust estate has not been so
maintained, the Company shall remedy any such deficiency by making the
expenditures certified by the independent engineer as necessary for such
purpose. Until such independent engineer shall certify that such deficiency has
been remedied, there shall be deducted from the principal amount of Mortgage
Bonds otherwise issuable or cash otherwise withdrawable the amount stated in the
report of such independent engineer as necessary to remedy such deficiency in
maintenance less any sums which may have been expended to remedy the deficiency
since the date of such report.
The Company must maintain a proper reserve for renewals, replacements and
retirements of property and make periodic credits, at least annually thereto, by
charges to operating expenses, sufficient to provide adequately for losses by
reason of wear and tear, inadequacy and obsolescence or catastrophe not covered
by insurance. Such credits shall be not less than as may be required by accepted
accounting practice for like corporations or as may be prescribed by the Public
Service Commission of the State of New York or any other governmental agency
having jurisdiction. The Company shall annually furnish to the Mortgage Trustee
a certificate by an independent engineer as to the adequacy of the annual
depreciation accrual. The Company has furnished to the Mortgage Trustee the
annual opinions of independent engineers required by the Mortgage
6
<PAGE> 8
that depreciation (as defined in the Mortgage) was not in excess of amounts
credited to depreciation or replacement reserves during the year under
consideration.
The New Bonds are not subject to the provisions of Article XXI of the
Mortgage, except that the New Bonds are subject to the redemption provisions of
such Article XXI because of the applicability of such Article to Mortgage Bonds
of all series so long as any Mortgage Bonds of any series created prior to 1994
are outstanding. Article XXI of the Mortgage, which will remain in effect so
long as any First Mortgage Bonds of any series created prior to 1994 are
outstanding, provides that, to the extent that the cost of property additions
during a year less the total amount of (i) cash withdrawn from moneys deposited
with the Mortgage Trustee as permitted by the Mortgage, plus (ii) cash expended
by the Company for property additions from insurance proceeds received on
account of loss of materials and supplies, or on account of any other loss under
$50,000, is less than the greater of:
(a) the sum of the amount credited to depreciation or replacement
reserves through charges to operating expense and the excess, if any, of
depreciation (as defined in the Mortgage) over amounts so credited as shown
by the certificate of an independent engineer, or
(b) an amount equal to 2% of the gross book value of depreciable
property,
the Company must annually deposit cash with the Mortgage Trustee unless such
deficiency is offset by a credit (the amount by which the foregoing cost of
property additions, less the amount in (i) and (ii) above, exceeds the greater
of (a) or (b) above) for each of the preceding two years. Such credits may be
used to offset such deficiency only to the extent of net bondable value of
property additions if, within the year with respect to which the deposit is made
and the two years next preceding, Mortgage Bonds have been issued on account of
property additions or cash withdrawn. At December 31, 1994, no cash was on
deposit with the Mortgage Trustee under the above provision.
Any cash deposited with the Mortgage Trustee in respect of any such net
deficiency may be withdrawn under circumstances specified in the Mortgage. Any
such cash not withdrawn, upon order of the Company, must be used to redeem or
purchase Mortgage Bonds (including the New Bonds) in accordance with the
provisions of the Mortgage. If any cash left on deposit with the Mortgage
Trustee for 12 consecutive months or more is in excess of $350,000, the amount
of such cash in excess of $250,000 must be applied by the Mortgage Trustee to
redeem or purchase Mortgage Bonds, subject to certain exceptions set forth in
the Mortgage.
There are no provisions in the Mortgage restricting the declaration of
dividends or requiring the maintenance of any asset ratio.
Modification of Mortgage: The Mortgage may be modified if approved by the
holders of not less than 75% in aggregate principal amount of the Mortgage Bonds
at the time outstanding which would be affected by the action proposed to be
taken, except that if any such action affects two or more series the approval of
75% of the aggregate principal amount of the Mortgage Bonds of such two or more
series at the time outstanding is required (the approval of the holders of 75%
of the principal amount of Mortgage Bonds of each of such series not being
required) provided that no such modification shall (1) extend the due dates of
principal or interest or (2) reduce the amount of principal, interest or premium
or (3) limit the right of a holder of a Mortgage Bond to institute suit for the
enforcement of payment of principal or interest in accordance with the terms of
the Mortgage Bonds, without the consent of the holder of each Mortgage Bond
which would be so affected; nor shall any such modification (a) reduce the
percentages of the principal amount of Bonds the holders of which are required
to consent to any supplemental indenture or (b) deprive any non-assenting holder
of a Mortgage Bond of a lien upon the property subject to the Mortgage for the
security of his or her Mortgage Bonds or (c) create any mortgage or pledge or
lien in the nature thereof ranking prior to or equal with the lien of the
Mortgage. In any event, modifications may not be made which would permit certain
actions to be taken with the approval of the holders of less than a majority of
the Mortgage Bonds outstanding, or which would permit the postponement of the
payment of interest without the approval of the holders of 75% of all the
Mortgage Bonds outstanding, or which would permit the postponement of interest
for more than 3 years.
The Mortgage may be modified as to matters which are not of a substantive
nature without the consent of the holders of any of the Mortgage Bonds
outstanding, including such modifications as shall be necessary to
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effect the qualification of the Mortgage under the Trust Indenture Act of 1939,
as amended ("Trust Indenture Act"), or under any similar federal statute as may
be enacted, and including the addition to the Mortgage of certain other
provisions as may be expressly permitted by the Trust Indenture Act.
Events of Default, Remedies: The following events are defined as events of
default in the Mortgage:
(a) failure to pay principal of any of the Mortgage Bonds when due and
payable;
(b) failure for 30 days to pay interest due and payable on any of the
Mortgage Bonds;
(c) failure to pay interest upon or principal of any outstanding prior
lien bonds (none of which presently exist) continuing beyond the period of
grace specified in the prior lien mortgage securing same;
(d) certain acts of bankruptcy, insolvency or reorganization; and
(e) failure to perform any other covenant or agreement contained in
the Mortgage or in any of the Mortgage Bonds for a period of 60 days after
written notice to the Company by the Mortgage Trustee. Compliance with
Mortgage provisions is evidenced by periodic statements filed by the
Company with the Mortgage Trustee.
Upon the occurrence of any of such events of default, the Mortgage Trustee
may, and upon the written request of the holders of a majority in principal
amount of the Mortgage Bonds must, (1) declare the principal and interest
accrued thereon of all outstanding Mortgage Bonds due and payable for all
purposes under the Mortgage, and/or (2) upon being indemnified (as hereinafter
described), sell at public auction, in accordance with the laws of the State of
New York and the terms of the Mortgage, the whole of the trust estate as
provided by the terms of the Mortgage. However, if such default is cured, the
holders of a majority in principal amount of all Mortgage Bonds outstanding,
may, in writing, waive such default and its consequences and rescind such
declaration.
The Mortgage provides that the Mortgage Trustee, within 90 days after the
occurrence of a default thereunder, is required to give the holders of the
Mortgage Bonds notice of all defaults known to it, unless cured; provided,
however, that, except in the case of a default in the payment of the principal
of or interest on any of the Mortgage Bonds or in the payment of any sinking or
purchase fund installment, the Mortgage Trustee may withhold such notice if the
Mortgage Trustee determines that it is in the interest of the holders of the
Mortgage Bonds to do so.
The holders of a majority in principal amount of the Mortgage Bonds
outstanding have the right to direct the time, method and place of conducting
any proceeding for any remedy available to, or conferred by the Mortgage upon,
the Mortgage Trustee; provided, however, that the Mortgage Trustee may, if it
determines in good faith that such direction would unjustly prejudice the right
of non-assenting Mortgage Bondholders, decline to follow such direction.
The Mortgage Trustee, before proceeding to enforce any of the covenants
under the Mortgage, may request security and indemnity, adequate to its
satisfaction, against the costs, expenses and liabilities to be incurred in or
by reason of such enforcement action.
Upon occurrence of any of such events of default, the holders of 25% or
more of the principal amount of the Mortgage Bonds may declare the principal and
interest accrued thereon of all outstanding Mortgage Bonds due and payable for
all purposes under the Mortgage.
The Company is required to furnish annually to the Mortgage Trustee a
certificate as to the compliance by the Company with all conditions and
covenants under the Mortgage without regard to any period of grace or
requirement of notice provided under the Mortgage.
Concerning the Mortgage Trustee: The Company has entered into a revolving
credit arrangement with the Mortgage Trustee and a group of lenders under which
it may borrow funds from time to time. The Mortgage Trustee also acts as
depositary of part of the funds of the Company.
The Mortgage Trustee is trustee under a nuclear decommissioning trust for
the Company's interest in the Nine Mile 2 Plant described in the Incorporated
Documents.
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DESCRIPTION OF THE UNSECURED NOTES
General: The Unsecured Notes will be issued under an indenture, dated as
of April 1, 1992 ("Indenture"), between the Company and First Trust of New York,
National Association (as successor trustee to Morgan Guaranty Trust Company of
New York), as Trustee ("Indenture Trustee"). The summaries herein concerning the
Unsecured Notes and the Indenture do not purport to be complete and are
qualified in their entirety by express reference to the Indenture.
The Indenture provides that, in addition to the $35 million aggregate
principal amount of debt securities previously issued thereunder and any
Unsecured Notes, additional debt securities (including both interest bearing and
original issue discount securities) may be issued thereunder, without limitation
as to the aggregate principal amount. The Unsecured Notes and all other debt
securities issued and hereafter to be issued under the Indenture are
collectively referred to as the "Indenture Securities." The Indenture does not
limit the amount of other debt, secured or unsecured, which may be issued by the
Company. The Unsecured Notes will rank pari passu with all other unsecured
indebtedness of the Company.
Reference is made to the applicable Prospectus Supplement for a description
of the following terms of the Offered Notes in respect of which this Prospectus
is being delivered: (i) the title of such Offered Notes; (ii) the limit, if any,
upon the aggregate principal amount of such Offered Notes; (iii) the rate or
rates, or the method of determination thereof, at which such Offered Notes will
bear interest, if any; the date or dates from which such interest will accrue;
the dates on which such interest will be payable ("Interest Payment Date"); and
the regular record dates for the interest payable on such Interest Payment
Dates; (iv) the obligation, if any, of the Company to redeem or purchase such
Offered Notes pursuant to any sinking fund or analogous provisions or at the
option of the holder thereof and the periods within which or the dates on which,
the prices at which and the terms and conditions upon which such Offered Notes
will be redeemed or purchased, in whole or in part, pursuant to such obligation;
(v) the periods within which or the dates on which, the prices at which and the
terms and conditions upon which such Offered Notes may be redeemed or
repurchased, if any, in whole or in part, at the option of the Company; (vi) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which such Offered Notes will be issuable; (vii) whether such
Offered Notes are to be issued in whole or in part in the form of one or more
global Unsecured Notes and, if so, the identity of the depositary for such
global Unsecured Notes; (viii) the terms under which the Offered Notes may be
convertible into Common Stock or other securities of the Company and (ix) any
other terms of such Offered Notes not inconsistent with the provisions of the
Indenture.
Payment of Notes; Transfers, Exchanges: Except as may be provided in the
applicable Prospectus Supplement, interest, if any, on each Unsecured Note
payable on each Interest Payment Date will be paid to the person in whose name
such Unsecured Note is registered (the registered holder of any Indenture
Security being herein called a "Holder") as of the close of business on the
regular record date relating to such Interest Payment Date; provided, however,
that interest payable at maturity (whether at stated maturity, upon redemption
or otherwise, hereinafter "Maturity") will be paid to the person to whom the
principal of such Unsecured Note is paid. However, if there has been a default
in the payment of interest on any Unsecured Note, such defaulted interest may be
payable to the Holder of such Unsecured Note as of the close of business on a
date selected by the Indenture Trustee not more than 15 days and not less than
10 days prior to the date proposed by the Company for payment of such defaulted
interest.
Principal of and premium, if any, and interest, if any, on the Unsecured
Notes at Maturity will be payable upon presentation of the Unsecured Notes at
the principal corporate trust office of First Trust of New York, National
Association, or of any successor paying agent, in New York, New York. The
Company may change the place of payment on the Unsecured Notes, may appoint one
or more paying agents (including the Company) and may remove any paying agent,
all in its discretion. The applicable Prospectus Supplement, or a supplement
thereto, will identify any new place of payment and any paying agent appointed
and will disclose the removal of any paying agent effected prior to the date of
such Prospectus Supplement or supplement thereto.
The transfer of Unsecured Notes may be registered, and Unsecured Notes may
be exchanged for other Unsecured Notes of authorized denominations and of like
tenor and aggregate principal amount, at the
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<PAGE> 11
principal corporate trust office of First Trust of New York, National
Association, or any successor transfer agent and registrar, in New York, New
York. The Company may change the place for registration of transfer of the
Unsecured Notes, may appoint one or more additional security registrars or
transfer agents (including the Company) and may remove any security registrar or
transfer agent, all in its discretion. The applicable Prospectus Supplement, or
a supplement thereto, will identify any new place for registration of transfer
and any additional security registrar or transfer agent appointed and will
disclose the removal of any security registrar or transfer agent effected prior
to the date of such Prospectus Supplement or supplement thereto. No service
charge will be made for any transfer or exchange of the Unsecured Notes, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The Company will not be
required (a) to issue, register the transfer of, or exchange Unsecured Notes
during a period of 15 days prior to giving any notice of redemption or (b) to
issue, register the transfer of, or exchange any Unsecured Note selected for
redemption in whole or in part, except the unredeemed portion of any Unsecured
Note being redeemed in part.
Redemption: Any terms of the optional or mandatory redemption of Offered
Notes will be set forth in the applicable Prospectus Supplement. Except as shall
otherwise be provided with respect to Offered Notes redeemable at the option of
the Holder, such Offered Notes will be redeemable only upon notice, by mail, not
less than 30 nor more than 60 days prior to the date fixed for redemption and,
if less than all of the Offered Notes of any series, or any tranche thereof, are
to be redeemed, the particular Offered Notes will be selected by such method as
the Indenture Trustee deems fair and appropriate.
Any notice of optional redemption may state that such redemption shall be
conditional upon the receipt by the Indenture Trustee, on or prior to the date
fixed for such redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, on such Unsecured Notes and that if such
money has not been so received, such notice will be of no force or effect and
the Company will not be required to redeem such Unsecured Notes.
Events of Default: The following constitute events of default under the
Indenture with respect to each series of Indenture Securities outstanding
thereunder:
(a) failure to pay any interest on any Indenture Security of such
series within 60 days after the same becomes due and payable;
(b) failure to pay any principal of or premium, if any, on any
Indenture Security of such series within three Business Days (as defined in
the Indenture) after the same becomes due and payable;
(c) failure to perform or breach of any covenant or warranty of the
Company in the Indenture (other than a covenant or warranty of the Company
in the Indenture solely for the benefit of one or more series of Indenture
Securities other than the Unsecured Notes), for 60 days after written
notice to the Company by the Indenture Trustee, or to the Company and the
Indenture Trustee by the Holders of at least 33% in principal amount of the
Indenture Securities of such series outstanding under the Indenture as
provided in the Indenture;
(d) a default under any evidence of indebtedness by the Company
(including a default with respect to any series of Unsecured Notes or
Mortgage Bonds), or a default under any instrument under which there may be
issued any such indebtedness (including the Indenture and the Mortgage), in
each case aggregating in excess of $5 million, which default shall
constitute a failure to pay the principal of such indebtedness when due and
payable (after the expiration of any applicable grace period) or shall have
resulted in the acceleration of when such indebtedness becomes due and
payable if (i) either the Indenture Trustee, or at least 10% in principal
amount of any outstanding series of Unsecured Notes, shall have given the
Company notice of such default and (ii) within 10 days of said notice, such
indebtedness is not discharged or such acceleration is not rescinded or
annulled;
(e) certain events of bankruptcy, insolvency or reorganization; and
(f) any other event of default specified with respect to Indenture
Securities of such series.
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Remedies: If an event of default with respect to any series of Indenture
Securities occurs and is continuing, then either the Indenture Trustee or the
Holders of not less than 33% in principal amount of the outstanding Indenture
Securities of such series may declare the principal amount (or if the Indenture
Securities of such series are discount notes or similar Indenture Securities,
such portion of the principal amount as may be specified in the applicable
Prospectus Supplement) of all of the Indenture Securities of such series to be
due and payable immediately; provided, however, that if such an event of default
occurs and is continuing with respect to more than one series of Indenture
Securities, the Indenture Trustee or the Holders of not less than 33% in
aggregate principal amount of the outstanding Indenture Securities of all such
series, considered as one class, may make such declaration of acceleration and
not the Holders of the Indenture Securities of any one of such series.
At any time after the declaration of acceleration with respect to the
Indenture Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained, the event or events of default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Indenture Trustee a sum
sufficient to pay
(1) all overdue interest on all Indenture Securities of such
series;
(2) the principal of and premium, if any, on any Indenture
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Indenture Securities;
(3) interest upon overdue interest at the rate or rates prescribed
therefor in such Indenture Securities, to the extent that payment of
such interest is lawful; and
(4) all amounts due to the Indenture Trustee under the Indenture;
and
(b) any other event or events of default with respect to the Indenture
Securities of such series, other than the nonpayment of the principal of
the Indenture Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in the
Indenture.
If any such event of default with respect to the Indenture Securities of
any series occurs and is continuing, the Holders of a majority in principal
amount of the outstanding Indenture Securities of such series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, with respect to the Indenture Securities of
such series; provided, however, that if such an event of default occurs and is
continuing with respect to more than one series of Indenture Securities, the
Holders of a majority in aggregate principal amount of the outstanding Indenture
Securities of all such series, considered as one class, will have the right to
make such direction, and not the Holders of the Indenture Securities of any one
of such series; and provided, further, that (a) such direction will not be in
conflict with any rule of law or with the Indenture and could not involve the
Indenture Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate, (b) the Indenture Trustee may take any other
action it deems proper which is not inconsistent with such direction, and (c)
the Indenture Trustee shall not be obligated to take any action unduly
prejudicial to Holders not joining in such direction. The right of a Holder of
any Indenture Security of such series to institute a proceeding with respect to
the Indenture is subject to certain conditions precedent, but each Holder has an
absolute right to receive payment of principal and premium, if any, and
interest, if any, when due and to institute suit for the enforcement of any such
payment. The Indenture provides that the Indenture Trustee, within 90 days after
the occurrence of any default thereunder with respect to the Indenture
Securities of a series, is required to give the Holders of the Indenture
Securities of such series notice of any default known to it, unless cured or
waived; provided, however, that, except in the case of a default in the payment
of principal of or premium, if any, or interest, if any, on any Indenture
Securities of such series, the Indenture Trustee may withhold such notice if the
Indenture Trustee determines that it is in the interest of
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<PAGE> 13
such Holders to do so; and provided, further, that in the case of such an event
of default of the character specified above in clause (c) under
"Securities -- Description of the Unsecured Notes -- Events of Default," no such
notice shall be given to such Holders until at least 75 days after the
occurrence thereof.
The Company will be required to furnish annually to the Indenture Trustee a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance.
Covenants: Maintenance of Property; Preservation of Rights; Consolidation,
or Merger, etc.; Negative Pledge: The Company will cause (or, with respect to
property owned in common with others, make reasonable effort to cause) all its
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order, ordinary wear and tear
excepted, and will cause (or with respect to property owned in common with
others make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that the
foregoing shall not prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
Subject to the provisions described in the next paragraph, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if, in the judgment of the
Company, (i) preservation thereof is no longer desirable in the conduct of the
business of the Company and (ii) the loss thereof does not adversely affect the
interests of the Holders in any material respect.
The Company will not consolidate with or merge into any other corporation
or corporations or convey, transfer or lease its properties and assets
substantially as an entirety to any person or persons unless (a) the corporation
or corporations formed by such consolidation or into which the Company is merged
or the person or persons which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety,
expressly assumes, by supplemental indenture, the due and punctual payment of
the principal of and premium, if any, and interest, if any, on all the
outstanding Indenture Securities and the performance of all of the covenants of
the Company under the Indenture, (b) immediately after giving effect to any such
transaction no event of default, and no event which after notice or lapse of
time would become an event of default, will have occurred and be continuing, and
(c) the Company will have delivered to the Indenture Trustee an Officers'
Certificate and an Opinion of Counsel as provided in the Indenture.
The Company will not incur or permit to exist any mortgage, lien, pledge,
charge or encumbrance of any kind (other than "Excepted Encumbrances") upon its
property (other than "Excepted Property") to secure indebtedness without equally
and ratably securing the outstanding Indenture Securities of all series,
including the Unsecured Notes; provided, however, that this restriction shall
not apply in certain circumstances, including the pledging by the Company of
assets in connection with the incurrences of indebtedness in aggregate principal
amount not exceeding 3% of the Company's net tangible utility assets at any time
outstanding. "Excepted Encumbrances" includes, among other things, the
following: (i) liens for taxes not delinquent and being contested in good faith
by the Company; (ii) easements, rights of way, restrictions or reservations in
the Company's property for, among other things, roads, utility transmission and
distribution facilities and other utility rights of way and immaterial defects
in title; (iii) purchase money mortgages on property acquired after the date of
the Indenture; (iv) liens existing on assets prior to the acquisition thereof;
(v) the lien of the Mortgage (accordingly, there is no restriction in the
Indenture on additional issuances of Mortgage Bonds); and (vi) liens arising out
of the refinancing, extension renewal or refunding of indebtedness secured by
any lien permitted as certain Excepted Encumbrances, including by any of the
foregoing clauses (iii), (iv) and (v). "Excepted Property" generally means
personal property used in the ordinary business of the Company, including cash,
accounts receivable, stock in trade, products generated or purchased by the
Company, office equipment, motor vehicles, fuel, and gas.
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Modification of Indenture: Without the consent of any Holders of Indenture
Securities, the Company and the Indenture Trustee may enter into one or more
supplemental indentures for any of the following purposes:
(a) to evidence the succession of another person to the Company and
the assumption by any such successor of the covenants of the Company in the
Indenture and the Indenture Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of outstanding Indenture Securities or to
surrender any right or power conferred upon the Company by the Indenture;
or
(c) to add any additional events of default with respect to all or any
series of outstanding Indenture Securities; or
(d) to change or eliminate any provision of the Indenture or to add
any new provision to the Indenture; provided that if such change,
elimination or addition will adversely affect the interests of the Holders
of Indenture Securities of any series in any material respect, such change,
elimination or addition will become effective with respect to such series
only when there is no Indenture Security of such series remaining
outstanding under the Indenture; or
(e) to provide collateral security for the Indenture Securities; or
(f) to establish the form or terms of Indenture Securities of any
series as permitted by the Indenture; or
(g) to evidence and provide for the acceptance of appointment of a
successor Indenture Trustee under the Indenture with respect to the
Indenture Securities of one or more series and to add to or change any of
the provisions of the Indenture as shall be necessary to provide for or to
facilitate the administration of the trusts under the Indenture by more
than one trustee; or
(h) to provide for the procedures required to permit the utilization
of a noncertificated system of registration for any series of Indenture
Securities; or
(i) to change any place where (1) the principal of and premium, if
any, and interest, if any, on Indenture Securities of any series, or any
tranche thereof, shall be payable, (2) any Indenture Securities of any
series, or any tranche thereof, may be surrendered for registration of
transfer, (3) Indenture Securities of any series, or any tranche thereof,
may be surrendered for exchange, and (4) notices and demands to or upon the
Company in respect of the Indenture Securities of any series, or any
tranche thereof, and the Indenture may be served; or
(j) to cure any ambiguity or inconsistency or to make any other
provisions with respect to matters or questions arising under the
Indenture, provided such provisions shall not adversely affect the
interests of the Holders of Indenture Securities of any series in any
material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act is amended after the date of the Indenture to require changes to the
Indenture or the incorporation therein of additional provisions or permit
changes to, or the elimination of, provisions which, at the date of the
Indenture or at any time thereafter, are required by the Trust Indenture Act to
be contained in the Indenture, the Company and the Indenture Trustee may,
without the consent of any Holders, enter into one or more supplemental
indentures to effect or reflect any such change, incorporation or elimination.
The consent of the Holders of not less than a majority in principal amount
of the Indenture Securities of all series then outstanding under the Indenture,
considered as one class, is required for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the
Indenture pursuant to an indenture or supplemental indenture; provided, however,
that if less than all of the series of Indenture Securities outstanding under
the Indenture are directly affected by a supplemental indenture, then the
consent only of the Holders of a majority in aggregate principal amount of the
outstanding Indenture Securities of all series so directly affected, considered
as one class, will be required; and provided, further, that if the Indenture
Securities of any series shall have been issued in more than one tranche and if
the proposed supplemental
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indenture shall directly affect the rights of the Holders of Indenture
Securities of one or more, but less than all, of such tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the Indenture
Securities outstanding of all tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture will, without the consent of the Holder of each Indenture Security
outstanding under the Indenture of each such series or tranche directly affected
thereby, (a) change the stated maturity of, or any installment of principal of
or the rate of interest on (or the amount of any installment of interest on),
any Indenture Security, or reduce the principal thereof or redemption premium
thereon, if any, or change the amount payable upon acceleration of a discount
note or method of calculating the rate of interest thereon, or otherwise modify
certain terms of payment of the principal thereof or interest or premium
thereon, (b) reduce the percentage in principal amount of the Indenture
Securities outstanding under such series or tranche required to consent to any
supplemental indenture or waiver under the Indenture or to reduce the
requirements for quorum and voting, or (c) modify certain of the provisions in
the Indenture relating to supplemental indentures, waivers of certain covenants
and waivers of past defaults.
A supplemental indenture which changes or eliminates any covenant or other
provision of the Indenture which has expressly been included solely for the
benefit of one or more particular series of Indenture Securities or of one or
more tranches thereof, or which modifies the rights of the Holders of Indenture
Securities of such series or tranche with respect to such covenant or other
provision, shall be deemed not to affect the rights under the Indenture of the
Holders of any other Indenture Securities.
Defeasance: The Indenture Securities of any series, or any portion of the
principal amount thereof, will be deemed to have been paid for purposes of the
Indenture (except as to any surviving rights of registration of transfer or
exchange expressly provided for in the Indenture), and the entire indebtedness
of the Company in respect thereof will be deemed to have been satisfied and
discharged, if there shall have been irrevocably deposited with the Indenture
Trustee, in trust: (a) money in the amount which will be sufficient, or (b)
Government Obligations (as defined below), which do not contain provisions
permitting the redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide monies which, together with the
money, if any, deposited with or held by the Indenture Trustee, will be
sufficient, or (c) a combination of (a) and (b) which will be sufficient, to pay
when due the principal of and premium, if any, and interest, if any, due and to
become due on such Indenture Securities or portions thereof on and prior to the
maturity thereof. For this purpose, "Government Obligations" include direct
obligations of, or obligations unconditionally guaranteed by, the United States
of America entitled to the benefit of the full faith and credit thereof and
certificates, depositary receipts or other instruments which evidence a direct
ownership interest in such obligations or in any specific interest or principal
payments due in respect thereof.
As a condition to defeasing the Offered Notes as described above, the
Company is obligated to obtain a legal opinion to the effect that the defeasance
of the Offered Notes will be tax free to the Holders of the Offered Notes to be
defeased.
DESCRIPTION OF NEW PREFERRED STOCK
The following statements are brief summaries of certain provisions with
respect to the Serial Preferred Stock of the Company and the New Preferred Stock
contained in the Company's Restated Certificate of Incorporation, as amended and
as proposed to be amended ("Certificate of Incorporation"), filed as Exhibits to
the Registration Statement of which this Prospectus is a part. These summaries
do not purport to be complete and reference is made to said Exhibits for
complete statements of such provisions.
Terms of New Preferred Stock: Reference is made to the applicable
Prospectus Supplement which accompanies this Prospectus for the following terms
and other information with respect to the New Preferred Stock being offered
thereby: (1) the number of shares, and designation and series of such New
Preferred Stock; (2) the dividend rate or method of calculation thereof; and (3)
any redemption terms, sinking fund requirements, or other specific terms
applicable to the New Preferred Stock.
General: The Certificate of Incorporation authorizes a total of 31,200,000
shares, consisting of 1,200,000 shares of Serial Preferred Stock having a par
value of $100 per share ("Serial Preferred Stock")
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<PAGE> 16
and 30,000,000 shares of Common Stock having a par value of $5 per share
("Common Stock"). The Serial Preferred Stock is issuable from time to time in
one or more series. The number of shares of each such series to be issued shall
be determined by the Board of Directors of the Company. The New Preferred Stock
will constitute one or more new series of the Serial Preferred Stock of the
Company. In addition to the New Preferred Stock, there are presently authorized
eight series of Serial Preferred Stock of which an aggregate of 810,300 shares
were issued and outstanding as of December 31, 1994.
Dividend Rights: Before any dividends on the Common Stock shall be paid or
set apart for payment, holders of outstanding Serial Preferred Stock, including
the New Preferred Stock, are entitled to cumulative preferential dividends when
and as declared by the Board of Directors from the surplus of the Company at the
dividend rate (or method of calculation thereof) set forth in the applicable
Prospectus Supplement. Unless otherwise set forth in the applicable Prospectus
Supplement, dividend payment dates for the New Preferred Stock will be the first
days of January, April, July and October in each year. Unless otherwise set
forth in the applicable Prospectus Supplement, dividends shall accrue from the
date of original issuance. The holders of the New Preferred Stock shall not be
entitled to receive any dividends in excess of cumulative dividends and no
interest shall accrue upon dividends in arrears.
Dividends in full shall not be declared and set apart for payment or paid
on the Serial Preferred Stock of any series for any dividend period unless
dividends in full have been or are contemporaneously declared and set apart for
payment or paid on the Serial Preferred Stock of all series then outstanding for
all the dividend periods terminating on the same or an earlier date. When the
stated dividends are not paid in full the shares of all series of the Serial
Preferred Stock shall share ratably in the payment of dividends, including
accumulations, if any, in accordance with the sums which would be payable on
said shares if all dividends were declared and paid in full.
There is no provision restricting the repurchase or redemption of any
series of Serial Preferred Stock by the Company when dividends are in arrears.
Voting Rights: Unless at any time dividends on any series of New Preferred
Stock shall not have been paid for periods aggregating one year or more, the
holders of such stock will not, except as otherwise provided by law, have any
voting powers whatever with respect to such series of New Preferred Stock held
by them, except that the holders of such stock will be entitled to vote or act
separately as a class with respect to any proposal to authorize any amendment of
the Certificate of Incorporation which alters the preferences of outstanding
shares of such series of New Preferred Stock or which authorizes shares having
preferences which are in any respect superior to the preferences of the
outstanding shares of such series of New Preferred Stock or which increases the
authorized amount of the Serial Preferred Stock, and the consent or affirmative
vote of the holders of record of two-thirds of the outstanding shares of such
series of New Preferred Stock will be required for any such amendment. In case
at any time dividends on any series of New Preferred Stock shall not have been
paid in full for periods aggregating one year or more, then and until all
dividends accrued upon such series of New Preferred Stock shall have been paid,
the holders of such series of New Preferred Stock (a) will have the right,
together with the holders of all other Serial Preferred Stock in respect to
which the same right shall be conferred, to elect a majority of the members of
the Board of Directors of the Company, and (b) as to all matters other than the
election of directors, shall have the same voting rights as the holders of
Common Stock except as to matters with respect to which they are given the right
to vote separately as a class.
The voting rights of the New Preferred Stock will be substantially similar
to those of the other series of Serial Preferred Stock. The holders of the
Common Stock are entitled to one vote for each share of such Common Stock at all
shareholders' meetings. See "Securities -- Description of Common Stock -- Voting
Rights" below.
Liquidation Rights: The holders of each series of New Preferred Stock will
be entitled to receive before any payment or distribution of the assets of the
Company shall be made to the holders of the Common Stock (a)(i) an amount equal
to the then applicable optional redemption price for such series upon any
voluntary dissolution, liquidation or winding up of the Company resulting in a
distribution of assets to its shareholders, or (ii) if at the time such series
of New Preferred stock shall not be redeemable, the amount, if any, set forth in
the applicable Prospectus Supplement and (b) the sum of $100 per share upon any
involuntary dissolution,
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<PAGE> 17
liquidation or winding up of the Company resulting in a distribution of assets
to its shareholders, plus in each case accrued dividends, if any. The
consolidation or merger of the Company with or into any other corporation or
corporations shall not be deemed to be a dissolution, liquidation or winding up
of the Company unless the effect thereof shall be to cause a distribution of
assets among its shareholders. After such payments to the holders of the New
Preferred Stock and preferential payments, if any, to holders of other Serial
Preferred Stock, holders of Common Stock will be entitled to receive the
remaining assets of the Company in proportion to the number of shares held by
them respectively.
If the assets distributable upon the dissolution, liquidation or winding up
of the Company shall be insufficient to permit the payment to the holders of the
Serial Preferred Stock of the full amount payable thereon, then said assets
shall be distributed ratably among the holders of the respective series of
Serial Preferred Stock in accordance with the sums which would be payable on
such dissolution, liquidation or winding up, if all sums payable were discharged
in full.
Preemptive or Other Subscription Rights: No holder of any Serial Preferred
Stock has any preemptive rights.
Conversion Rights: None of the Serial Preferred Stock of any series has
any conversion rights.
Calls and Assessments: The New Preferred Stock when duly issued will be
fully paid and non-assessable and the holders of such shares will not be liable
to any further calls on unpaid installments or to assessments by the Company.
Additional Serial Preferred Stock: Additional Serial Preferred Stock may
be issued from time to time in series when authorized by the Company's Board of
Directors, up to the number of authorized but unissued shares of Serial
Preferred Stock set forth in the Certificate of Incorporation. The series
designation, dividend rate (or method of determining dividend rate), dividend
payment dates, amounts to be paid upon voluntary or involuntary dissolution,
liquidation or winding-up of the Company, redemption prices and terms, if any,
and other terms, restrictions and qualifications of each series shall be
determined by the Board of Directors to the extent not fixed by the Certificate
of Incorporation. The holders of any subsequent series of Serial Preferred Stock
shall not be given voting powers greater than those of the holders of the
presently outstanding Serial Preferred Stock or the New Preferred Stock or the
privilege of purchasing or subscribing for any shares of the Company or any
securities convertible into shares of the Company or of exchanging shares of
such series for shares of any other class or of any other series of the same or
any other class unless the same powers and privileges are given to the holders
of all of the Serial Preferred Stock then outstanding including the New
Preferred Stock.
Transfer Agent: The Transfer Agent and Registrar of the Serial Preferred
Stock is First Chicago Trust Company of New York, P.O. Box 2550, Jersey City,
New Jersey 07303-2550.
DESCRIPTION OF DEPOSITARY PREFERRED SHARES AND DEPOSITARY RECEIPTS
If Depositary Preferred Shares are issued in respect of the New Preferred
Stock, the Depositary Preferred Shares will be evidenced by certificates
("Depositary Receipts") issuable pursuant to a proposed agreement ("Deposit
Agreement") among the Company, a financial institution to be named in the
applicable Prospectus Supplement, as Depositary ("Depositary"), and the holders
from time to time of the Depositary Receipts. Each Depositary Preferred Share
will represent 1/4 of a share of the New Preferred Stock deposited under the
Deposit Agreement. Each owner of a Depositary Preferred Share will be entitled,
proportionally, to all of the rights and preferences of the New Preferred Stock
(including dividends and redemption, sinking fund, liquidation and voting
rights) contained in the Certificate of Incorporation and summarized under
"Securities -- Description of New Preferred Stock" herein and "Supplemental
Description of New Preferred Stock" in the applicable Prospectus Supplement.
Reference is made to the proposed form of Deposit Agreement which is filed
as an Exhibit to the Registration Statement of which this Prospectus is a part
for complete statements of the provisions of the
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<PAGE> 18
Depositary Preferred Shares and Depositary Receipts and the following summary of
certain of the provisions thereof is qualified in its entirety by reference to
such exhibit.
Withdrawal of New Preferred Stock: Upon surrender at the office of the
Depositary, at the location to be set forth in the applicable Prospectus
Supplement, of Depositary Receipts and payment by the holder of record of such
Depositary Receipts of the fees and charges of the Depositary described in
"Charges of Depositary" below, and subject to the Deposit Agreement, an owner of
Depositary Preferred Shares is entitled to delivery at such office, to or upon
the order of such owner, of the New Preferred Stock and any other property at
the time represented by such Depositary Preferred Shares. Upon such surrender,
an owner of Depositary Preferred Shares will be entitled to receive whole shares
of the New Preferred Stock on a four-for-one basis and Depositary Receipts for
fractional interests in the New Preferred Stock. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Preferred Shares in
excess of the number of whole shares of New Preferred Stock to be withdrawn, the
Depositary will deliver to such holder at the same time a new Depositary Receipt
evidencing such excess number of Depositary Preferred Shares.
Stock Exchange Listing: The New Preferred Stock will not be listed on any
stock exchange and it is anticipated that there will be no public trading market
for the New Preferred Stock except as may be represented by the Depositary
Preferred Shares. Reference is made to the applicable Prospectus Supplement for
information on whether application will be made to list any Depositary Preferred
Shares on the NYSE.
Issuance of Depositary Preferred Shares: Immediately following the
issuance of New Preferred Stock to be represented by Depositary Preferred
Shares, the Company will deposit such New Preferred Stock with the Depositary.
The Depositary will, upon deposit of such New Preferred Stock and subject to the
terms of the Deposit Agreement relating to transfer, execute and deliver to the
person specified by the depositor the number of Depositary Preferred Shares
issuable in respect of such deposit.
The Depositary may also require the assignment of dividends or other
property which may be or become payable in respect of the New Preferred Stock
presented for deposit or, in lieu of such assignment, a satisfactory indemnity
agreement. The New Preferred Stock may be deposited while the register of
stockholders of the Company is closed, subject to compliance with the Deposit
Agreement.
Redemption and Sinking Fund: The Depositary Preferred Shares are
redeemable simultaneously with and on the same terms and conditions as the
underlying New Preferred Stock whether pursuant to optional or mandatory
(including sinking fund, if any) redemption provisions. Whenever the Company
shall be required to or shall elect to redeem shares of the underlying New
Preferred Stock, the Depositary will redeem, as provided in the Deposit
Agreement and subject to the simultaneous redemption of the underlying shares of
New Preferred Stock, that number of Depositary Preferred Shares as shall
represent the number of shares of the New Preferred Stock to be redeemed by the
Company from the Depositary, subject to not less than 30 days' prior notice to
the owners of the Depositary Preferred Shares to be redeemed. In case less than
all of the Depositary Preferred Shares are to be redeemed, the Depositary
Preferred Shares to be redeemed shall be selected by the Depositary by lot or
substantially equivalent method. See "Securities -- Description of New Preferred
Stock" herein and "Supplemental Description of New Preferred Stock" in the
applicable Prospectus Supplement.
Dividends and Other Distributions: The Depositary will distribute all cash
dividends or other cash distributions received in respect of the New Preferred
Stock to the record holders of Depositary Receipts in proportion, insofar as
practicable, to the number of Depositary Preferred Shares owned by such holders.
Voting the Underlying New Preferred Stock: Upon receipt of notice of any
meeting at which the holders of the New Preferred Stock are entitled to vote,
the Depositary will mail the information contained in such notice of meeting to
the record holders of Depositary Receipts. The record holders of Depositary
Receipts on the record date will be entitled to instruct the Depositary in
writing as to the exercise of the voting rights pertaining to the amount of the
New Preferred Stock represented by their respective Depositary Preferred Shares.
Because the New Preferred Stock will have one vote per share, the holders of the
Depositary Preferred Shares will have 1/4th vote per share. The Depositary will
endeavor, insofar as practicable, to vote the amount
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<PAGE> 19
of the New Preferred Stock represented by such Depositary Preferred Shares in
accordance with such instructions, and the Company has agreed to take all action
which may be deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from voting the New Preferred
Stock to the extent that it does not receive specific instructions from the
owners of the Depositary Preferred Shares. The owners of the Depositary
Preferred Shares shall have no greater voting rights than the holders of the New
Preferred Stock. The holders of New Preferred Stock will be entitled to vote, as
a class together with any other series of preferred stock of the Company
similarly affected, as provided above in "Securities -- Description of New
Preferred Stock -- Voting Rights."
Record Date: Whenever any cash dividend or other cash distribution becomes
payable, any distribution other than cash is made, or any rights, preferences or
privileges are at any time offered with respect to the underlying New Preferred
Stock, or the Depositary receives notice of any meeting at which holders of such
New Preferred Stock are entitled to vote, the Depositary will in each such
instance fix a record date (which shall be the same date as the record date for
the New Preferred Stock) for the determination of the holders of Depositary
Receipts who are entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting or to receive
notice of such meeting.
Amendment and Termination of the Deposit Agreement: The form of the
Depositary Receipts and any provision of the Deposit Agreement may at any time
be amended by agreement between the Company and the Depositary. Any amendment
which imposes or increases any fees, taxes or charges upon owners of Depositary
Preferred Shares (other than taxes and other charges, fees and telecopier or
delivery expenses payable by owners of Depositary Preferred Shares as stated
below under "Securities -- Description of Depositary Preferred Shares and
Depositary Receipts -- Charges of Depositary"), or which otherwise prejudices
any substantial existing right of the holders of Depositary Receipts, will not
take effect as to outstanding Depositary Receipts until the expiration of 90
days after notice of such amendment has been given to the record holders of
outstanding Depositary Receipts.
Whenever directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the holders of all
outstanding Depositary Preferred Shares at least 30 days prior to the date of
termination. Upon termination of the Deposit Agreement, the record holders of
outstanding Depositary Receipts shall exchange such Depositary Receipts for
shares of the underlying New Preferred Stock, provided that no fractional shares
of New Preferred Stock will be issued and, in lieu thereof, each holder
otherwise entitled to a fractional share of New Preferred Stock shall be paid
cash in an amount equal to the redemption price attributable to the fractional
shares. If any Depositary Receipts remain outstanding after the date of
termination, the Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the owners
thereof, and will not give any further notices (other than notices of such
termination) or perform any further acts under the Deposit Agreement except that
the Depositary will continue (i) to collect dividends and other distributions
pertaining to the New Preferred Stock held by the Depositary and (ii) to deliver
New Preferred Stock together with such dividends and distributions and the net
proceeds of any sales of rights, preferences, privileges or other property in
exchange for Depositary Receipts surrendered to the Depositary. At any time
after the expiration of two years from the date of termination, the Depositary
shall, at the direction of the Company, sell the New Preferred Stock then held
by it at public or private sale, at such place or places and upon such terms as
the Company deems proper and may thereafter hold the net proceeds of any such
sale, together with any money and other property then held by it, without
liability for interest thereon, for the pro rata benefit of the holders of
Depositary Receipts which have not been surrendered. Within 60 days after the
first anniversary of the date of such sale, the Depositary shall pay to the
Company any of such proceeds which have not been claimed by the holders of
Depositary Receipts.
Charges of Depositary: All charges in connection with the initial issuance
of the Depositary Preferred Shares will be borne by the Company. Pursuant to
Section 5.08 of the Deposit Agreement, the Company will pay all other fees and
charges of the Depositary except for fees of the Depositary for the withdrawal
of New Preferred Stock, taxes (including transfer taxes, if any) and other
governmental charges payable in connection with the Depositary Preferred Shares,
and such telecopier and delivery charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Depositary Receipts. All
such fees and charges
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<PAGE> 20
described in the preceding sentence shall be paid by the holders of Depositary
Receipts (except as otherwise provided in said Section 5.08).
To the extent the fees of the Depositary are not to be paid by the Company
pursuant to Section 5.08 of the Deposit Agreement, the Depositary will charge
the parties to whom Depositary Receipts or shares of New Preferred Stock are
delivered a fee of $25.00 for each transaction involving the withdrawal of New
Preferred Stock.
General: The Depositary will make available for inspection by owners of
Depositary Preferred Shares at its office, at the location to be set forth in
the applicable Prospectus Supplement, all reports and communications from the
Company which are made generally available to the holders of its New Preferred
Stock and will send to owners of Depositary Preferred Shares copies of all
notices and reports required to be sent to the owners of New Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement are limited to performance in good faith
of their duties thereunder and they are not obligated to prosecute or defend any
legal proceeding in respect of any Depositary Preferred Shares or underlying New
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
advice or information from counsel, accountants or other persons believed to be
competent and on documents believed to be genuine. The Depositary is not
responsible for any failure to carry out any instructions to vote, provided it
acts in good faith, and it may deal in any class of securities of the Company
and in the Depositary Preferred Shares.
The Depositary may from time to time appoint Depositary's Agents (which may
include the Company) for purposes of the Deposit Agreement.
The Depositary may resign or be removed by the Company, effective upon the
acceptance by its successor depositary of its appointment.
Unless otherwise set forth in the applicable Prospectus Supplement, the
Depositary will act as Transfer Agent and, if listed on the NYSE, the Registrar
of the Depositary Receipts.
COMMON STOCK DIVIDENDS AND PRICE RANGE
The following table sets forth the reported high and low sale prices of the
Company's Common Stock as reported by The Wall Street Journal for, and the
dividends per share declared in, the periods indicated:
<TABLE>
<CAPTION>
DIVIDEND
PER
YEAR HIGH LOW SHARE
- ----- ---- --- --------
<C> <S> <C> <C> <C>
1993 (1Q).................................................... 34 1/4 30 5/8 .50
(2Q).................................................... 34 1/2 30 5/8 .515
(3Q).................................................... 35 5/8 34 .515
(4Q).................................................... 34 3/8 28 3/8 .515
1994 (1Q).................................................... 30 3/8 27 7/8 .515
(2Q).................................................... 29 3/4 25 3/4 .52
(3Q).................................................... 27 5/8 23 .52
(4Q).................................................... 26 1/2 22 7/8 .52
1995 (1Q) (through March 27, 1995)........................... 27 3/4 25 3/4 .52
</TABLE>
The Company and its principal predecessors have paid dividends on its Common
Stock in each year since 1903. While the Board of Directors of the Company
intends to continue the practice of paying dividends quarterly, the amounts and
dates of such dividends as may be declared will be based on all the facts and
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<PAGE> 21
circumstances known at the time of consideration of such declaration. For a
recent closing sale price of the Common Stock, as reported on the NYSE, see the
cover page of the applicable Prospectus Supplement.
The Company maintains an Automatic Dividend Reinvestment and Stock Purchase
Plan ("Dividend Reinvestment Plan") available for shareholders of record. Under
the Dividend Reinvestment Plan, dividends on the shares owned by the shareholder
are automatically reinvested in the Company's Common Stock. The shareholder may
also make additional cash payments (not exceeding $10,000 per quarter) for the
purchase of Common Stock under the Dividend Reinvestment Plan. All expenses of
the Dividend Reinvestment Plan are paid by the Company. Shares are purchased on
behalf of participants in the Dividend Reinvestment Plan either on the open
market or directly from the Company, or a combination of both, as the Company
shall elect. Shares purchased directly from the Company consist of authorized
but unissued shares of Common Stock. The foregoing is only a summary of the
Dividend Reinvestment Plan. Details are contained in the Prospectus relating to
the Dividend Reinvestment Plan, which can be obtained by writing to the Director
of Shareholder Relations, Central Hudson Gas & Electric Corporation, 284 South
Avenue, Poughkeepsie, New York 12601-4879.
The Company has a Customer Stock Purchase Plan to provide its residential
customers with a convenient method of purchase and sale of shares of the
Company's Common Stock. Shares are purchased on behalf of participants in such
Plan either on the open market or directly from the Company, or a combination of
both, as the Company shall elect. Shares purchased directly from the Company
consist of authorized but unissued shares of Common Stock.
The Company also maintains for employees an Employee Stock Purchase Plan
which provides for the acquisition of shares of the Company's Common Stock in
the open market.
DESCRIPTION OF COMMON STOCK
The statements set forth below are brief summaries of certain provisions
contained in the Certificate of Incorporation, and in the Company's 4.85%
Promissory Notes, due December 1, 1995, which are exhibits to the Registration
Statement to which this Prospectus is a part. Such statements do not purport to
be complete and reference is made to said exhibits for complete statements of
such provisions.
Terms of Additional Common Stock: Reference is made to the applicable
Prospectus Supplement which accompanies this Prospectus for the following terms
and other information with respect to the Additional Common Stock being offered
thereby: (1) the number of shares of such Additional Common Stock; (2) the
initial public offering price; and (3) any other specific terms applicable to
the offering of such Additional Common Stock.
Dividend Rights: Subject to the limitations set forth in the following
paragraph, the Board of Directors may declare dividends upon the Common Stock
payable out of the retained earnings remaining after full cumulative dividends
upon the Company's Serial Preferred Stock shall have been paid or a sum
sufficient for the payment thereof shall have been set apart or appropriated for
such payment.
Limitations on the Payment of Dividends: The Company's 4.85% Promissory
Notes, due December 1, 1995, contain limitations upon the right of the Company
to declare or pay any dividend or make any other distribution on (other than
dividends or distributions payable in Common Stock), or acquire for a
consideration, any shares of its Common Stock unless specified conditions are
satisfied. At December 31, 1994, the amount of retained earnings available for
dividends on the Company's Common Stock under the provisions of said 4.85%
Promissory Notes was $70,870,373.
Voting Rights: The holders of the Common Stock are entitled to one vote
for each share of such Common Stock at all shareholders' meetings and, except as
hereinafter stated, have the only voting rights. Such voting rights are
non-cumulative.
As set forth in the Certificate of Incorporation, the holders of each
series of Serial Preferred Stock shall at all times be entitled to vote or act
separately as a class with respect to any proposal to authorize any amendment of
the Certificate of Incorporation which affects the preferences of outstanding
shares of each
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<PAGE> 22
such series. In addition, if, at any time, dividends on any series of
outstanding Serial Preferred Stock shall not have been paid in full for periods
aggregating one year or more, then, and until full cumulative dividends thereon
shall have been paid, the holders of such series shall have certain voting
rights as specified in the Certificate of Incorporation, including the right to
elect a majority of the members of the Board of Directors of the Company. See
"Securities -- Description of New Preferred Stock -- Voting Rights" above.
Liquidation Rights: Upon the dissolution, liquidation or winding up of the
Company resulting in a distribution of assets to its shareholders, the holders
of the Common Stock are entitled to receive the remaining assets of the Company
in proportion to the number of shares held by them respectively, after the
payments have been made to the holders of each issue of the Serial Preferred
Stock as required by the Certificate of Incorporation.
Preemptive or other Subscription Rights: No holder of Common Stock or
outstanding Serial Preferred Stock has any preemptive rights.
Fair Price Provision: The Certificate of Incorporation contains a "fair
price" provision designed generally to assure that all shareholders receive the
same price and/or equal treatment for their shares of Common Stock upon an offer
for the Company's Common Stock under a proposed business combination. The
Company's "fair price" provision prohibits certain business combinations with
the controlling or substantial shareholder unless (i) the minimum price and
procedural requirements are satisfied, (ii) a majority of disinterested
directors approve the transaction, or (iii) the required supermajority
shareholder vote is obtained, consisting of the affirmative vote of at least 80%
of the Company's voting shares, in which vote at least two-thirds of the
disinterested shareholders approve the transaction. Such provision supplements
the "fair price" protection available under the New York Business Corporation
Law.
Stock Exchange Listing: The outstanding shares of Common Stock are, and
the Additional Common Stock to be offered hereby will be, subject to official
notice of issuance, listed on the NYSE.
Other Provisions: The par value of the Common Stock is $5.00 per share.
All of the outstanding Common Stock of the Company is, and the Additional Stock
to be offered hereby will be, fully paid and non-assessable.
Transfer Agent and Registrar: The Transfer Agent and Registrar of the
Common Stock is First Chicago Trust Company of New York, P.O. Box 2550, Jersey
City, New Jersey 07303-2550.
LEGAL OPINIONS AND EXPERTS
The legality of the Securities offered hereby and all legal matters in
connection therewith will be passed upon for the Company by Gould & Wilkie,
general counsel to the Company, One Chase Manhattan Plaza, New York, New York
and for any agent, dealer or underwriter by Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York.
The statements herein as to matters of law and legal conclusions under "The
Company," "Securities -- Description of the New Bonds,"
"Securities -- Description of the Unsecured Notes," "Securities -- Description
of New Preferred Stock," "Securities -- Description of Depositary Preferred
Shares and Depositary Receipts," "Securities -- Common Stock Dividends and Price
Range" and "Securities -- Description of Common Stock" have been reviewed by
Gould & Wilkie and are set forth in reliance upon their opinion given upon their
authority as experts.
The consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1994 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
21
<PAGE> 23
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters or dealers;
(ii) directly to one or more purchasers; or (iii) through agents. Each
Prospectus Supplement sets forth the terms of the offering of the Securities
offered thereby, including the name or names of any underwriters, dealers or
agents, the initial public offering price or purchase price of such Securities,
the proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any discounts or concessions
allowed or reallowed or paid to dealers, any securities exchange on which Debt
Securities may be listed and the use of delayed delivery contracts, if any. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. Only firms named
in a Prospectus Supplement are deemed to be underwriters, dealers or agents in
connection with the Securities offered thereby.
If underwriters are used in the sale of the Securities, such Securities
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Such Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more underwriters. Any underwriters with respect to any of
the Securities will be named in the Prospectus Supplement relating thereto and,
if an underwriting syndicate is used, the managing underwriter or underwriters
will be named on the cover page of such Prospectus Supplement. Unless otherwise
set forth in the Prospectus Supplement, the obligations of the underwriters to
purchase any of the Securities will be subject to certain conditions precedent,
and the underwriters will be obligated to purchase all of such Securities if any
are purchased.
Subject to certain conditions, the Company may agree to indemnify the
several underwriters or agents and their controlling persons against certain
liabilities, including liabilities under the Securities Act of 1933, as amended,
arising out of or based upon, among other things, any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, this Prospectus, a Prospectus Supplement or the Incorporated
Documents or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. See the
applicable Prospectus Supplement.
Underwriters, dealers and agents may engage in transactions with or perform
services for the Company in the ordinary course of business.
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, OR, WITH RESPECT TO ANY SERIES OF SECURITIES, THE PROSPECTUS
SUPPLEMENT RELATING THERETO, AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR BY ANY OF THE UNDERWRITERS. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES OFFERED THEREBY IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE
SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
22
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses relating to the New Bonds (assuming an issuance of
$80,000,000) are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 27,600
Printing of Registration Statement, Prospectus, Supplemental
Indenture and Bonds............................................ 60,000*
Mortgage recording tax........................................... 800,000
Auditor's fee and expenses....................................... 25,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 12,000*
Legal services -- Company's counsel.............................. 100,000*
Authentication and delivery of Bonds and Mortgage Trustee's fees
and expenses including counsel fees............................ 45,000*
Agents' counsel fee.............................................. 40,000*
Rating agencies fees............................................. 60,000*
Miscellaneous disbursements...................................... 17,000*
----------
Total.................................................. $1,186,600*
==========
</TABLE>
------------
* Estimated
Estimated expenses relating to the Unsecured Notes (assuming an issuance of
$80,000,000) are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 27,600
Printing of Registration Statement, Prospectus, Unsecured Notes
Indenture and Unsecured Notes.................................. 60,000*
Auditor's fees and expenses...................................... 25,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 12,000*
Legal services -- Company's counsel.............................. 100,000*
Authentication and delivery of Unsecured Notes and Indenture
Trustee's fees and expenses including counsel fees............. 40,000*
Agents' counsel fee.............................................. 40,000*
Rating agencies fees............................................. 60,000*
Miscellaneous disbursements...................................... 17,000*
----------
Total.................................................. $ 381,600*
==========
</TABLE>
------------
* Estimated
II-1
<PAGE> 25
Estimated expenses relating to the New Preferred Stock (assuming an
issuance of 250,000 shares), other than underwriting discounts and commissions,
are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 8,700
Printing of Registration Statement, Prospectus, Stock
Certificates and related papers................................ 35,000*
Auditor's fees and expenses...................................... 50,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 25,000*
Legal services -- Company's counsel.............................. 75,000*
Establishment of Depositary...................................... 25,000*
Rating agencies fees............................................. 30,000*
Miscellaneous disbursements...................................... 8,250*
----------
Total.................................................. $ 256,950*
==========
</TABLE>
------------
* Estimated
Estimated expenses relating to the Additional Common Stock (assuming an
issuance of an amount of $40,000,000 in initial aggregate offering price), other
than underwriting discounts and commissions, are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 13,800
Printing of Registration Statement, Prospectus and related
papers......................................................... 55,000*
Auditor's fees and expenses...................................... 25,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 20,000*
Legal services -- Company's counsel.............................. 55,000*
New York Stock Exchange Listing fee.............................. 5,250**
Miscellaneous disbursements...................................... 10,000*
----------
Total.................................................. $ 184,050*
==========
</TABLE>
------------
* Estimated
** Assumes an issuance of 1,500,000 shares
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are in certain cases entitled,
pursuant to provisions contained in Sections 721 through 726 of the New York
Business Corporation Law ("BCL"), Article II, Section 13, of the Bylaws of the
Registrant, and the Registrant's Retirement Income Plan and Disability Plan, to
indemnification against expenses and liabilities arising from their acts or
omissions. The Bylaws of the Registrant contain provisions that the Registrant
shall indemnify, to the full extent permitted by law, any person made, or
threatened to be made, a party to any action or proceedings, whether civil or
criminal, by reason of the fact that such person is or was a director or officer
of the Registrant. The Registrant has entered into an indemnification agreement
with each of its directors and officers. Each such agreement relates to
indemnification by the Registrant to the full extent authorized or permitted by
law for any civil or criminal action or proceeding arising by reason of that
individual's role as a director or officer of the Board of Directors or as an
officer or employee of the Registrant or service with any other corporation,
partnership, joint venture, trust, employee benefit plan or enterprise in any
such capacity at the request of the Registrant. In addition, the Registrant's
Certificate of Incorporation exempts directors from certain liabilities arising
out of events
II-2
<PAGE> 26
occurring on and after April 6, 1988, pursuant to Section 402(b) of the BCL. The
Registrant, pursuant to authority granted by the BCL, has purchased liability
insurance on behalf of itself and its directors and officers in connection with
the corporate responsibilities of such directors and officers.
The form of underwriting agreement to which the offering contained in this
Registration Statement relates also provides that the underwriters named therein
will, under certain circumstances, indemnify the Registrant, its directors and
officers, and any person who controls any thereof.
ITEM 16. EXHIBITS
Following is the list of Exhibits, as required by Item 601 of Regulation
S-K, filed as part of the Registration Statement, including Exhibits
incorporated herein by reference:
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ------- ------------- ------------------ -------
<S> <C> <C> <C> <C>
(1)(a) -- Form of Distribution Agreement.
(b) -- Form of Preferred Stock
Underwriting Agreement
(c) -- Form of Common Stock
Underwriting Agreement
(4) -- Instruments defining the rights
of security holders:
(i)1 -- Restated Certificate of 10-Q Report for quarter ended (3)1
Incorporation of the Company September 30, 1993
under Section 807 of the
Business Corporation Law, filed
August 14, 1989.
(i)2 -- Certificate of Amendment to the 10-Q Report for quarter ended (3)2
Restated Certificate of September 30, 1993
Incorporation of the Company
under Section 805 of the
Business Corporation Law, filed
April 5, 1990.
(i)3 -- Certificate of Amendment of the 10-Q Report for quarter ended (3)3
Certificate of Incorporation of September 30, 1993
the Company under Section 805 of
the Business Corporation Law,
filed October 19, 1993.
(i)4 -- Form of the Company's 4.85% 2-66511 1.9
Promissory Notes.
(i)5 -- Bylaws in effect on the date of 10-Q Report for quarter ended (3)(iii)
this Registration Statement. March 31, 1994
+(i)6 -- Indenture dated as of January 1, 10-K/A Report for year ended 4(ii)1
1927 between the Registrant and December 31, 1992
American Exchange Irving Trust
Company (now The Bank of New
York), as Trustee.
-- Supplemental Indentures to
Indenture dated as of January 1,
1927:
NUMBER DATED AS OF
------ -----------
+(i)7 First March 1, 1935 10-K/A Report for year ended 4(ii)2
December 31, 1992
+(i)8 Second June 1, 1937 10-K/A Report for year ended 4(ii)3
December 31, 1992
</TABLE>
II-3
<PAGE> 27
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ------- ------------- ------------------ -------
<S> <C> <C> <C> <C> <C>
+(i)9 Third April 1, 1940 10-K/A Report for year ended 4(ii)4
December 31, 1992
+(i)10 Fourth March 1, 1941 10-K/A Report for year ended 4(ii)5
December 31, 1992
+(i)11 Fifth December 1, 1950 10-K/A Report for year ended 4(ii)6
December 31, 1992
+(i)12 Sixth December 1, 1952 10-K/A Report for year ended 4(ii)7
December 31, 1992
+(i)13 Seventh October 1, 1954 10-K/A Report for year ended 4(ii)8
December 31, 1992
+(i)14 Eighth May 15, 1958 10-K/A Report for year ended 4(ii)9
December 31, 1992
(i)15 Ninth December 1, 1967 10-K/A Report for year ended 4(ii)10
December 31, 1992
(i)16 Tenth January 15, 1969 2-65127 2.12
(i)17 Eleventh June 1, 1970 2-67537 1.13
(i)18 Twelfth February 1, 1972 10-K/A Report for year ended 4(ii)13
December 31, 1992
(i)19 Thirteenth April 15, 1974 10-K/A Report for year ended 4(ii)14
December 31, 1992
(i)20 Fourteenth November 1, 1975 10-K/A Report for year ended 4(ii)15
December 31, 1992
(i)21 Fifteenth June 1, 1977 10-K/A Report for year ended 4(ii)16
December 31, 1992
(i)22 Sixteenth September 15, 1979 2-67537 1.18
(i)23 Seventeenth May 15, 1980 2-69640 4(ii)18
(i)24 Eighteenth November 15, 1980 10-K/A Report for year ended 4(ii)19
December 31, 1992
(i)25 Nineteenth August 15, 1981 10-K/A Report for year ended 4(ii)20
December 31, 1992
(i)26 Twentieth September 1, 1982 10-K/A Report for year ended 4(ii)21
December 31, 1992
(i)27 Twenty-First November 22, 1982 10-K/A Report for year ended 4(ii)22
December 31, 1992
(i)28 Twenty-Second May 24, 1984 10-K/A Report for year ended 4(ii)23
December 31, 1992
(i)29 Twenty-Third June 15, 1985 10-K/A Report for year ended 4(ii)24
December 31, 1992
(i)30 Twenty-Fourth September 1, 1986 10-K/A Report for year ended 4(ii)25
December 31, 1992
(i)31 Twenty-Fifth December 1, 1988 10-K/A Report for year ended 4(ii)26
December 31, 1992
(i)32 Twenty-Sixth May 1, 1991 10-K/A Report for year ended 4(ii)27
December 31, 1992
(i)33 Twenty-Seventh May 15, 1992 10-K/A Report for year ended 4(ii)28
December 31, 1992
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal amount of First Mortgage Bonds, designated
Secured Medium-Term Notes, Series A, and the Prospectus Dated April 13, 1992,
relating to $125,000,000 principal amount of Registrant's debt securities
attached thereto, as filed pursuant to Rule 424(b) in connection with
Registration Statement No. 33-46624, and, as applicable to a tranche of such
Secured Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
II-4
<PAGE> 28
(b) Pricing Supplement No. 2, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(c) Pricing Supplement No. 3, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(d) Pricing Supplement No. 4, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(e) Pricing Supplement No. 5, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(f) Pricing Supplement No. 6, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(g) Pricing Supplement No. 7, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)34 -- Form of Supplemental Mortgage Indenture between Registrant and The Bank of New
York, as Trustee, which contains forms of New Bonds.
*(i)35 -- Unsecured Note Indenture between Registrant and First Trust of New York, National
Association (as successor trustee to Morgan Guaranty Trust Company of New York), as
Trustee, dated as of April 1, 1992 (previously filed with the Company's Current
Report on Form 8-K, dated May 27, 1992, as Exhibit (4)(ii)29).
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal amount of Medium-Term Notes, Series A, and
the Prospectus Dated April 13, 1992, relating to $125,000,000 principal amount
of Registrant's debt securities attached thereto, as filed pursuant to Rule
424(b) in connection with Registration Statement No. 33-46624, and, as
applicable to a tranche of such Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 26, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(b) Pricing Supplement No. 2, Dated October 6, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)36 -- Forms of Unsecured Notes.
(i)37 -- Form of Certificate of Amendment of the Certificate of Incorporation of the Company
pursuant to Section 805 of the Business Corporation Law.
(i)38 -- Form of Deposit Agreement among Registrant, a financial institution to be named, as
Depositary, and Holders of Depositary Receipts.
(5) -- Opinion of counsel re legality.
(12) -- Statement showing the Computation of the Ratio of Earnings to Fixed Charges and the
Computation of the Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
(23) -- Consents of experts and counsel.
(a) -- Consent of Price Waterhouse LLP.
(b) -- Consent of Gould & Wilkie (contained in their opinion, a copy of which is filed as
Exhibit (5)).
(24) -- Power of attorney for each officer and director signing the Registration Statement.
(24.1) -- Certified copy of resolutions of the Board of Directors authorizing execution of
the Registration Statement.
(25) -- Statement of eligibility of trustee.
(a) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of The Bank of New York under the Mortgage Indenture).
(b) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of First Trust of New York, National Association, under the Unsecured Note
Indenture).
(27) -- Financial Data Schedule.
</TABLE>
II-5
<PAGE> 29
- ------------
* Incorporated herein by reference.
+ This Exhibit has heretofore been classified as a basic document under previous
Rule 24(b) of the SEC Rules of Practice.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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 ("Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in the first paragraph of Item 15 above, or
otherwise, the 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 the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the 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-6
<PAGE> 30
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO THE
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 28TH DAY
OF MARCH, 1995.
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
(Registrant)
By WILLIAM P. REILLY
-----------------------------------
(William P. Reilly,
Attorney-in-Fact)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES AND TITLES DATE
- --------------------------------------------- -------------------
<S> <C> <C>
JOHN E. MACK III, Chairman of the Board and
Chief Executive Officer and Director
(Principal Executive Officer); JOHN F.
DRAIN, Vice President -- Finance and
Controller (Principal Financial Officer and
Principal Accounting Officer); L. WALLACE
CROSS, JACK EFFRON, RICHARD H. EYMAN,
FRANCES D. FERGUSSON, HEINZ K. FRIDRICH,
EDWARD F.X. GALLAGHER, PAUL J. GANCI,
CHARLES LAFORGE, HOWARD C. ST. JOHN and
EDWARD P. SWYER, Directors
By WILLIAM P. REILLY
---------------------------------------
(William P. Reilly, Attorney-in-Fact)
March 28, 1995
</TABLE>
II-7
<PAGE> 31
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ----------------------------------- ------------- ------------------------------ -------
<S> <C> <C> <C> <C> <C>
(1)(a) -- Form of Distribution Agreement.
(b) -- Form of Preferred Stock
Underwriting Agreement
(c) -- Form of Common Stock
Underwriting Agreement
(4) -- Instruments defining the rights
of security holders:
(i)1 -- Restated Certificate of 10-Q Report for quarter ended (3)1
Incorporation of the Company September 30, 1993
under Section 807 of the
Business Corporation Law, filed
August 14, 1989.
(i)2 -- Certificate of Amendment to the 10-Q Report for quarter ended (3)2
Restated Certificate of September 30, 1993
Incorporation of the Company
under Section 805 of the
Business Corporation Law, filed
April 5, 1990.
(i)3 -- Certificate of Amendment of the 10-Q Report for quarter ended (3)3
Certificate of Incorporation of September 30, 1993
the Company under Section 805 of
the Business Corporation Law,
filed October 19, 1993.
(i)4 -- Form of the Company's 4.85% 2-66511 1.9
Promissory Notes.
(i)5 -- Bylaws in effect on the date of 10-Q Report for quarter ended (3)(iii)
this Registration Statement. March 31, 1994
+(i)6 -- Indenture dated as of January 1, 10-K/A Report for year ended 4(ii)1
1927 between the Registrant and December 31, 1992
American Exchange Irving Trust
Company (now The Bank of New
York), as Trustee.
-- Supplemental Indentures to
Indenture dated as of January 1,
1927:
NUMBER DATED AS OF
--------------- -------------------
+(i)7 First March 1, 1935 10-K/A Report for year ended 4(ii)2
December 31, 1992
+(i)8 Second June 1, 1937 10-K/A Report for year ended 4(ii)3
December 31, 1992
+(i)9 Third April 1, 1940 10-K/A Report for year ended 4(ii)4
December 31, 1992
+(i)10 Fourth March 1, 1941 10-K/A Report for year ended 4(ii)5
December 31, 1992
+(i)11 Fifth December 1, 1950 10-K/A Report for year ended 4(ii)6
December 31, 1992
+(i)12 Sixth December 1, 1952 10-K/A Report for year ended 4(ii)7
December 31, 1992
+(i)13 Seventh October 1, 1954 10-K/A Report for year ended 4(ii)8
December 31, 1992
+(i)14 Eighth May 15, 1958 10-K/A Report for year ended 4(ii)9
December 31, 1992
</TABLE>
<PAGE> 32
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ----------------------------------- ------------- ------------------------------ -------
<S> <C> <C> <C> <C> <C>
(i)15 Ninth December 1, 1967 10-K/A Report for year ended 4(ii)10
December 31, 1992
(i)16 Tenth January 15, 1969 2-65127 2.12
(i)17 Eleventh June 1, 1970 2-67537 1.13
(i)18 Twelfth February 1, 1972 10-K/A Report for year ended 4(ii)13
December 31, 1992
(i)19 Thirteenth April 15, 1974 10-K/A Report for year ended 4(ii)14
December 31, 1992
(i)20 Fourteenth November 1, 1975 10-K/A Report for year ended 4(ii)15
December 31, 1992
(i)21 Fifteenth June 1, 1977 10-K/A Report for year ended 4(ii)16
December 31, 1992
(i)22 Sixteenth September 15, 1979 2-67537 1.18
(i)23 Seventeenth May 15, 1980 2-69640 4(ii)18
(i)24 Eighteenth November 15, 1980 10-K/A Report for year ended 4(ii)19
December 31, 1992
(i)25 Nineteenth August 15, 1981 10-K/A Report for year ended 4(ii)20
December 31, 1992
(i)26 Twentieth September 1, 1982 10-K/A Report for year ended 4(ii)21
December 31, 1992
(i)27 Twenty-First November 22, 1982 10-K/A Report for year ended 4(ii)22
December 31, 1992
(i)28 Twenty-Second May 24, 1984 10-K/A Report for year ended 4(ii)23
December 31, 1992
(i)29 Twenty-Third June 15, 1985 10-K/A Report for year ended 4(ii)24
December 31, 1992
(i)30 Twenty-Fourth September 1, 1986 10-K/A Report for year ended 4(ii)25
December 31, 1992
(i)31 Twenty-Fifth December 1, 1988 10-K/A Report for year ended 4(ii)26
December 31, 1992
(i)32 Twenty-Sixth May 1, 1991 10-K/A Report for year ended 4(ii)27
December 31, 1992
(i)33 Twenty-Seventh May 15, 1992 10-K/A Report for year ended 4(ii)28
December 31, 1992
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal
amount of First Mortgage Bonds, designated Secured Medium-Term Notes, Series A,
and the Prospectus Dated April 13, 1992, relating to $125,000,000 principal
amount of Registrant's debt securities attached thereto, as filed pursuant to
Rule 424(b) in connection with Registration Statement No. 33-46624, and, as
applicable to a tranche of such Secured Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(b) Pricing Supplement No. 2, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(c) Pricing Supplement No. 3, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(d) Pricing Supplement No. 4, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(ii)
<PAGE> 33
(e) Pricing Supplement No. 5, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(f) Pricing Supplement No. 6, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(g) Pricing Supplement No. 7, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)34 -- Form of Supplemental Mortgage Indenture between Registrant and The Bank of New
York, as Trustee, which contains forms of New Bonds.
*(i)35 -- Unsecured Note Indenture between Registrant and First Trust of New York, National
Association (as successor trustee to Morgan Guaranty Trust Company of New York), as
Trustee, dated as of April 1, 1992 (previously filed with the Company's Current
Report on Form 8-K, dated May 27, 1992, as Exhibit (4)(ii)29).
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal amount of Medium-Term Notes, Series A, and
the Prospectus Dated April 13, 1992, relating to $125,000,000 principal amount
of Registrant's debt securities attached thereto, as filed pursuant to Rule
424(b) in connection with Registration Statement No. 33-46624, and, as
applicable to a tranche of such Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 26, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(b) Pricing Supplement No. 2, Dated October 6, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)36 -- Forms of Unsecured Notes.
(i)37 -- Form of Certificate of Amendment of the Certificate of Incorporation of the Company
pursuant to Section 805 of the Business Corporation Law.
(i)38 -- Form of Deposit Agreement among Registrant, a financial institution to be named, as
Depositary, and Holders of Depositary Receipts.
(5) -- Opinion of counsel re legality.
(12) -- Statement showing the Computation of the Ratio of Earnings to Fixed Charges and the
Computation of the Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
(23) -- Consents of experts and counsel.
(a) -- Consent of Price Waterhouse LLP.
(b) -- Consent of Gould & Wilkie (contained in their opinion, a copy of which is filed as
Exhibit (5)).
(24) -- Power of attorney for each officer and director signing the Registration Statement.
(24.1) -- Certified copy of resolutions of the Board of Directors authorizing execution of
the Registration Statement.
(25) -- Statement of eligibility of trustee.
(a) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of The Bank of New York under the Mortgage Indenture).
(b) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of First Trust of New York, National Association, under the Unsecured Note
Indenture).
(27) -- Financial Data Schedule.
</TABLE>
- ------------
* Incorporated herein by reference.
+ This Exhibit has heretofore been classified as a basic document under previous
Rule 24(b) of the SEC Rules of Practice.
(iii)
<PAGE> 1
EXHIBIT (5)
March 28, 1995
Central Hudson Gas & Electric Corporation
284 South Avenue
Poughkeepsie, New York 12601
Dear Sirs:
Referring to your Registration Statement on Form S-3 No. 33-56349 submitted
for electronic filing on November 7, 1994 with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, pursuant to Rule
415 promulgated thereunder, and to Amendment No. 1 thereto so submitted this
date with the Commission (said Registration Statement, as amended by said
Amendment No. 1 thereto, is hereinafter called the "Registration Statement"),
covering the proposed issuance and sale by you of (i) up to $80,000,000
aggregate principal amount of Debt Securities ("Debt Securities"), consisting of
your First Mortgage Bonds ("New Bonds") in one or more series to be issued under
an Indenture of Mortgage, dated as of January 1, 1927, of Central Hudson Gas &
Electric Corporation ("Company") to American Exchange Irving Trust Company (now
The Bank of New York), as Trustee ("Mortgage Trustee"), as heretofore
supplemented and amended and as to be supplemented by one or more supplemental
indentures (as so supplemented and amended, the "Mortgage") relating to the New
Bonds; and/or Unsecured Notes ("Unsecured Notes"), in one or more series to be
issued under an Indenture ("Unsecured Indenture"), dated as of April 1, 1992, by
and between the Company and First Trust of New York, National Association (as
successor to Morgan Guaranty Trust Company of New York), as Trustee ("Indenture
Trustee"), in amounts, at prices and on terms to be determined at the time or
times of sale; subject to the condition that the aggregate initial offering
price of the Debt Securities and the Additional Common Stock referred to in
(iii) below shall not exceed $80,000,000; (ii) up to 250,000 shares of
authorized and previously unissued shares of Serial Preferred Stock, par value
$100 per share, of the Company ("New Preferred Stock") in one or more series,
all at such time or times as the officers of the Company may determine and
covering the possible issuance in connection therewith of up to 1,000,000
depositary preferred shares, each representing 1/4 of a
<PAGE> 2
Central Hudson Gas & -2- March 28, 1995
Electric Corporation
share of New Preferred Stock ("Depositary Preferred Shares"), each evidenced by
Depositary Receipts ("Depositary Receipts"); and (iii) up to $40,000,000 in
aggregate initial offering price of additional shares of this Corporation's
Common Stock, $5.00 par value per share ("Additional Common Stock"), to be
issued and sold pursuant to public offering; subject to the condition that the
aggregate initial public offering price of the Additional Common Stock and the
Debt Securities shall not exceed $80,000,000, all as contemplated in the
Registration Statement (the Debt Securities, the New Preferred Stock, the
Depositary Preferred Shares and the Additional Common Stock are collectively
referred to hereinafter as the "Securities"):
The Company was incorporated and organized under our supervision. We have
acted as counsel for the Company since its incorporation on December 31, 1926.
We have advised the Company with regard to the execution and filing of its
Certificate of Consolidation (Certificate of Incorporation) and all certificates
amendatory thereof.
We have advised the Company in the preparation of the Registration
Statement.
With respect to those Debt Securities which are to be issued at any one
time ("Offered Bonds" in the case of the New Bonds or "Offered Notes" in the
case of the Unsecured Notes), and on the basis of the foregoing, and our
examination and consideration of such other legal and factual matters as we have
deemed appropriate, we are of the following legal opinion:
Upon -
(a) favorable action having been taken, at a meeting or meetings of the
Company's Board of Directors or a duly authorized committee of the
Board of Directors, to approve and authorize the terms and conditions,
and issuance and sale of the Offered Bonds and/or Offered Notes, the
execution and delivery of an appropriate Supplemental Indenture to the
Mortgage for the issuance and sale of the Offered Bonds, the issuance
and sale of such Offered Notes under the Unsecured Indenture, and any
other action necessary to the consummation of the proposed issuance and
sale of the Offered Bonds and/or Offered Notes, including the execution
and delivery of a Distribution Agreement in substantially
<PAGE> 3
Central Hudson Gas & -3- March 28, 1995
Electric Corporation
the form contained in the Registration Statement as Exhibit (1)(a);
(b) confirmation by us that the authorization set forth in the Order of the
Public Service Commission of the State of New York ("PSC") in Case
94-M-0198, issued and effective October 17, 1994, for the issuance and
sale of the Offered Bonds and/or Offered Notes continues to be in full
force and effect, and that all conditions precedent in such Order to
such issuance and sale have been satisfied;
(c) the Registration Statement becoming effective;
(d) the aforementioned Supplemental Indenture with respect to the Offered
Bonds having been duly executed and delivered by the parties thereto;
(e) the aforementioned Distribution Agreement with respect to the Debt
Securities having been duly executed and delivered by the parties
thereto; and
(f) the Offered Bonds and/or Offered Notes having been authenticated by the
Mortgage Trustee in the case of the Offered Bonds, and/or by the
Indenture Trustee in the case of the Offered Notes, and issued and
delivered for the consideration contemplated in the Registration
Statement and any prospectus supplement relating to the Offered Bonds
and/or Offered Notes and in accordance with (i) the provisions of the
Mortgage as to be supplemented by the aforementioned Supplemental
Indenture in the case of the Offered Bonds and/or the provisions of the
Unsecured Indenture in the case of the Offered Notes, and (ii) the
aforementioned resolutions of the Company's Board of Directors or duly
authorized committee of the Board of Directors;
the Offered Bonds and/or Offered Notes will be the valid, legal and binding
obligations of the Company.
<PAGE> 4
Central Hudson Gas & -4- March 28, 1995
Electric Corporation
With respect to the New Preferred Stock which is to be issued at any one
time ("Offered Preferred Stock"), and on the basis of the foregoing, and of our
examination and consideration of such other legal and factual matters as we
have deemed appropriate, we are of the following legal opinion:
Upon -
(a) favorable action having been taken, at a meeting or meetings of the
Company's Board of Directors or a duly authorized committee of the
Board of Directors, to approve and authorize the terms and conditions,
and issuance and sale of the Offered Preferred Stock, the execution and
delivery of an appropriate Underwriting Agreement for the issuance and
sale of the Offered Preferred Stock (in substantially the form
contained in the Registration Statement as Exhibit (1)(b)), and any
other action necessary to the consummation of the proposed issuance and
sale of the Offered Preferred Stock;
(b) confirmation by us that the authorization set forth in the Order of the
PSC in Case 93-M-0450, issued and effective September 29, 1993 (and as
such Order was amended on July 29, 1994), for the issuance and sale of
the Offered Preferred Stock continues to be in full force and effect,
and that all conditions precedent in said Order to such issuance and
sale have been satisfied;
(c) the Registration Statement becoming effective;
(d) the execution and delivery of said Underwriting Agreement relating to
the Offered Preferred Stock;
(e) the approval by the PSC of the Certificate of Amendment to the
Certificate of Incorporation of the Company relating to the Offered
Preferred Stock in substantially the form contained in the Registration
Statement as Exhibit (4)(i)37;
(f) the delivery for filing to the Department of State of the State of New
York of such
<PAGE> 5
Central Hudson Gas & -5- March 28, 1995
Electric Corporation
Certificate of Amendment relating to the Offered Preferred Stock; and
(g) the certificates for the Offered Preferred Stock having been duly
issued and delivered to or on the order of the purchasers thereof on
the terms and conditions, if any, set forth in the Registration
Statement and as authorized by the Board of Directors of the Company,
and the Company having received the consideration for said shares of
the Offered Preferred Stock as set forth in the Registration Statement
and as so authorized by said Board of Directors;
the Offered Preferred Stock will be legally issued, fully paid and
non-assessable.
When the events in the immediately preceding paragraph shall have occurred
and if and when the Deposit Agreement by and among the Company, a Depositary yet
to be determined ("Depositary") and the holders of Depositary Receipts who will
become parties thereto upon acceptance by them of Depositary Receipts ("Deposit
Agreement"), in substantially the form contained in the Registration Statement
as Exhibit (4)(i)38, is duly authorized, executed, and delivered, when the
Offered Preferred Stock shall have been deposited with the Depositary pursuant
to the terms of the Deposit Agreement, and when the Depositary Receipts shall
have been duly executed and delivered in accordance with the procedures set
forth in the Deposit Agreement by the Depositary to or on the order of the
purchasers thereof on the terms and conditions set forth in the Registration
Statement and Deposit Agreement; then, in our opinion, said Depositary Preferred
Shares, each representing 1/4 of a share of New Preferred Stock, as evidenced by
Depositary Receipts, will be validly and legally issued, fully paid and
non-assessable.
With respect to the Additional Common Stock which is to be issued at any
one time ("Offered Common Stock"), and on the basis of the foregoing, and of our
examination and consideration of such other legal and factual matters as we have
deemed appropriate, we are of the following legal opinion:
Upon -
(a) favorable action having been taken, at a meeting or meetings of the
Company's Board of Directors or a duly authorized committee of the
Board of Directors, to approve and authorize the terms and conditions,
and
<PAGE> 6
Central Hudson Gas & -6- March 28, 1995
Electric Corporation
issuance and sale of the Offered Common Stock, the execution and
delivery of an appropriate Underwriting Agreement for the issuance and
sale of the Offered Common Stock (in substantially the form contained
in the Registration Statement as Exhibit (1)(c)), and any other action
necessary to the consummation of the proposed issuance and sale of the
Offered Common Stock;
(b) confirmation by us that the authorization set forth in the Order of the
PSC in Case 94-M-0198, issued and effective October 17, 1994, for the
issuance and sale of the Offered Common Stock continues to be in full
force and effect, and that all conditions precedent in said Order to
such issuance and sale have been satisfied;
(c) the Registration Statement becoming effective;
(d) the execution and delivery of said Underwriting Agreement relating to
the Offered Common Stock; and
(e) the certificates for the Offered Common Stock having been duly issued
and delivered to or on the order of the purchasers thereof on the terms
and conditions, if any, set forth in the Registration Statement and as
authorized by the Board of Directors of the Company, and the Company
having received the consideration for said shares of the Offered Common
Stock as set forth in the Registration Statement and as so authorized
by said Board of Directors;
said shares of Offered Common Stock will be legally issued, fully paid and
non-assessable, provided that the consideration for such Offered Common Stock is
at least equal to the par value of the Company's Common Stock at the time of
issuance thereof.
We hereby consent that this opinion be filed as an Exhibit to the Company's
said Registration Statement, and we further consent to the use of our name as
experts in connection with the statements in the Prospectus included in said
Registration Statement as to matters of law and legal conclusions under the
captions "The Company," "Securities -- Description of the New Bonds,"
"Securities -- Description of the Unsecured Notes,"
<PAGE> 7
Central Hudson Gas & -7- March 28, 1995
Electric Corporation
"Securities -- Description of New Preferred Stock," "Securities -- Description
of Depositary Preferred Shares and Depositary Receipts," "Securities -- Common
Stock Dividends and Price Range" and "Securities -- Description of Common
Stock," and the reference to us under the caption "Legal Opinions and Experts"
in said Prospectus.
Very truly yours,
/s/ Gould & Wilkie
------------------
Gould & Wilkie
<PAGE> 1
EXHIBIT (12)
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings:
A. Net Income $ 50,929 $ 50,390 $ 47,688 $ 42,941 $ 41,035
B. Federal Income Tax 26,806 27,158 24,363 21,361 20,374
-------- -------- -------- -------- --------
C. Earnings before Income Taxes $ 77,735 $ 77,548 $72,051 $ 64,302 $ 61,409
======== ======== ======== ======== ========
D. Total Fixed Charges(1) 32,679 33,820 34,888 37,737 42,906
-------- -------- -------- -------- --------
E. Total Earnings $110,414 $111,368 $106,939 $102,039 $104,315
======== ======== ======== ======== ========
Preferred Dividend Requirements:
F. Allowance for Preferred Stock
Dividends Under IRC Sec 247 $ 5,127 $ 5,562 $ 5,544 $ 5,659 $ 5,681
G. Less Allowable Dividend Deduction 528 528 544 544 544
-------- -------- -------- -------- --------
H. Net Subject to Gross-up 4,599 5,034 5,000 5,115 5,137
I. Ratio of Earnings before Income
Taxes to Net Income (C/A) 1.526 1.539 1.511 1.497 1.497
-------- -------- -------- -------- --------
J. Pref. Dividend (Pre-tax) (HxI) 7,018 7,747 7,555 7,657 7,690
K. Plus Allowable Dividend Deduction 528 528 544 544 544
-------- -------- -------- -------- --------
L. Preferred Dividend Factor 7,546 8,275 8,099 8,201 8,234
M. Fixed Charges (D) 32,679 33,820 34,888 37,737 42,906
-------- -------- -------- -------- --------
N. Total Fixed Charges
and Preferred Dividends $ 40,225 $ 42,095 $ 42,987 $ 45,938 $ 51,140
======== ======== ======== ======== ========
O. Ratio of Earnings to Fixed
Charges (E/D) 3.38 3.29 3.07 2.70 2.43
======== ======== ======== ======== ========
P. Ratio of Earnings to Fixed Charges
and Preferred Dividends (E/N) 2.74 2.65 2.49 2.22 2.04
======== ======== ======== ======== ========
</TABLE>
(1) Includes a portion of rent expense deemed to be representative of the
interest factor.
<PAGE> 1
EXHIBIT (23) (a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 27, 1995, which appears on page 31 of the 1994 Annual Report to
Shareholders of Central Hudson Gas & Electric Corporation, which is incorporated
by reference in Central Hudson Gas & Electric Corporation's Annual Report on
Form 10-K for the year ended December 31, 1994. We also consent to the
incorporation by reference in such Prospectus of our report on the Financial
Statement Schedule, which appears on page F-2 of such Annual Report on Form
10-K. We also consent to the reference to us under the heading "Legal Opinions
and Experts" in such Prospectus.
PRICE WATERHOUSE LLP
New York, New York
March 28, 1995
<PAGE> 1
EXHIBIT (24.1)
I, WALTER A. BOSSERT, JR., an Assistant Secretary of Central Hudson Gas &
Electric Corporation, a New York corporation, hereby certify that at the regular
meeting of the Board of Directors of Central Hudson Gas & Electric Corporation,
a corporation organized under the laws of the State of New York, duly called and
held at the office of said corporation, 284 South Avenue, in the City of
Poughkeepsie, State of New York on June 24, 1994, at which a quorum was present
and voting throughout, the following resolutions were unanimously and duly
adopted and at all times subsequent to said date have been, and are now, in full
force and effect:
RESOLVED, that the 1994-1996 Financing Program, as
recommended by the Committee on Finance of this Board and
presented to this meeting (hereinafter in the resolutions
adopted at this meeting referred to as the "1994-1996 Financing
Program"), providing for the issuance and sale of (a) up to
$115 million aggregate principal amount of Debt Securities
("Debt Securities"), consisting of (i) its First Mortgage Bonds
in one or more series to be issued under an Indenture of
Mortgage, dated as of January 1, 1927, between this Corporation
and American Exchange Irving Trust Company (now The Bank of New
York), as Trustee, as heretofore supplemented and amended and
as to be supplemented by one or more supplemental indentures
relating to such Bonds and/or (ii) Unsecured Notes, in one or
more series to be issued under an Indenture, dated as of April
1, 1992, by and between this Corporation and Morgan Guaranty
Trust Company of New York, as Trustee, in amounts, at prices
and on terms to be approved from time to time at the time or
times of sale by the Chairman of the Board and Chief Executive
Officer and the officers of this Corporation, within ranges
previously determined by this Board of Directors subject to the
condition, however, that the aggregate initial offering price
of the Debt Securities and the Additional Common Stock referred
to in (c) below shall not exceed $115 million; (b) up to
250,000 shares of authorized and previously unissued shares of
Serial Preferred Stock, par value $100 per share, of this
Corporation ("New Preferred Stock") in one or more series, for
the purposes of redeeming a like aggregate number of shares of
one or more of two (2) certain outstanding
<PAGE> 2
series of Serial Preferred Stock of this Corporation, pursuant
to public offering or private sale, which, in a public
offering, may involve the issuance of depositary preferred
shares, each representing 1/4 of a share of New Preferred
Stock, all at such time or times as the Chairman of the Board
and Chief Executive Officer and the officers of this
Corporation may determine; and (c) up to 1,500,000 additional
shares of this Corporation's Common Stock, $5.00 par value per
share ("Additional Common Stock"), to be issued and sold
pursuant to public offering subject to the condition, however,
that the aggregate initial offering price of the Additional
Common Stock and the Debt Securities shall not exceed $115
million, be and it hereby is approved; and the Chairman of the
Board and Chief Executive Officer and the officers of this
Corporation be and they hereby are authorized to proceed with
the 1994-1996 Financing Program subject, however, to (i)
further action by this Board (a) as to the creation of one or
more series of said Debt Securities and the method or methods
for the offering and sale thereof, (b) as is required to
authorize the issuance of one or more series of the New
Preferred Stock, and (c) as is required to authorize the
issuance of Additional Common Stock (the Debt Securities, the
New Preferred Stock [including such depositary preferred
shares] and the Additional Common Stock are collectively
referred hereinafter in the accompanying resolutions as the
"Securities"); and (ii) receipt of an appropriate order or
orders or supplements to existing orders of the PSC authorizing
the issuances and sale of particular Securities.
RESOLVED, that the Chairman of the Board and Chief
Executive Officer and the officers of this Corporation be and
they hereby are authorized in the name and on behalf of this
Corporation to prepare and execute an appropriate Registration
Statement, on Form S-3, with respect to the registration under
the Securities Act of 1933 of the Securities to be issued from
time to time in one or more series or issuances, together with
appropriate Exhibits, all as described at this meeting, and in
the principal amounts
- 2 -
<PAGE> 3
and number of shares so described; and that the Chairman of the
Board and Chief Executive Officer and the officers of this
Corporation be and they hereby are authorized in the name and
on behalf of this Corporation to execute an appropriate
Registration Statement with respect to the registration under
the Securities Act of 1933, as amended, of the Securities, in
the form presented to this Board, with such changes therein as
the Chairman of the Board and Chief Executive Officer and the
officers executing the same on behalf of this Corporation shall
approve, such approval to be conclusively evidenced by his/her
execution thereof, and they hereby are further authorized and
directed to file or cause to be filed with the Securities and
Exchange Commission as required or permitted by law said
Registration Statement, as required in connection therewith,
and to do and cause to be done any and all things necessary or
appropriate to effect the registration of the Securities, under
the Securities Act of 1933, including, if necessary or
appropriate, the preparation, signing and filing of any
amendments or supplements thereto and to the Prospectus
contained therein; subject, however, to further action of the
Board in respect to the definitive terms of any of the
offerings under the 1994-1996 Financing Program;
RESOLVED, that John E. Mack III, Paul J. Ganci, John
F. Drain, Ellen Ahearn, Walter A. Bossert, Jr. and William P.
Reilly and each of them hereby is appointed attorney-in-fact
and proxy by this Corporation in its name and on its behalf to
sign, execute and file with the Securities and Exchange
Commission the Registration Statement and any amendments
thereto to effect the registration under the Securities Act of
1933 of the Securities to be issued from time to time in one or
more series or issuances.
- 3 -
<PAGE> 4
IN WITNESS WHEREOF, I have hereunto set my hand as an Assistant Secretary
of said Central Hudson Gas & Electric Corporation and affixed its corporate seal
this 28th day of March, 1995.
/s/ Walter A. Bossert, Jr.
-------------------------------
Assistant Secretary
- 4 -
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET, CONSOLIDATED STATEMENT OF INCOME AND CONSOLIDATED
STATEMENT OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> DEC-31-1994
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> $931,073
<OTHER-PROPERTY-AND-INVEST> $10,948
<TOTAL-CURRENT-ASSETS> $116,210
<TOTAL-DEFERRED-CHARGES> $192,550
<OTHER-ASSETS> $58,629
<TOTAL-ASSETS> $1,309,410
<COMMON> $86,192
<CAPITAL-SURPLUS-PAID-IN> $270,432
<RETAINED-EARNINGS> $80,107
<TOTAL-COMMON-STOCKHOLDERS-EQ> $436,731
$35,000
$46,030
<LONG-TERM-DEBT-NET> $389,364
<SHORT-TERM-NOTES> $3,000
<LONG-TERM-NOTES-PAYABLE> $0
<COMMERCIAL-PAPER-OBLIGATIONS> $0
<LONG-TERM-DEBT-CURRENT-PORT> $3,525
$0
<CAPITAL-LEASE-OBLIGATIONS> $0
<LEASES-CURRENT> $0
<OTHER-ITEMS-CAPITAL-AND-LIAB> $395,760
<TOT-CAPITALIZATION-AND-LIAB> $1,309,410
<GROSS-OPERATING-REVENUE> $515,668
<INCOME-TAX-EXPENSE> $28,043
<OTHER-OPERATING-EXPENSES> $414,492
<TOTAL-OPERATING-EXPENSES> $442,535
<OPERATING-INCOME-LOSS> $73,133
<OTHER-INCOME-NET> $8,399
<INCOME-BEFORE-INTEREST-EXPEN> $81,532
<TOTAL-INTEREST-EXPENSE> $30,603
<NET-INCOME> $50,929
$5,127
<EARNINGS-AVAILABLE-FOR-COMM> $45,802
<COMMON-STOCK-DIVIDENDS> $35,541
<TOTAL-INTEREST-ON-BONDS> $19,624
<CASH-FLOW-OPERATIONS> $115,522
<EPS-PRIMARY> $2.68
<EPS-DILUTED> $0
</TABLE>
