<PAGE>
As filed with the Securities and Exchange Commission on February 4, 1994
Registration No. 33-
__________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________
CONSUMERS POWER COMPANY
(Exact name of registrant as specified in its charter)
Michigan 38-0442310
(State or other (I.R.S. Employer Identification)
jurisdiction or organization)
212 West Michigan Avenue
Jackson, Michigan 49201
(Address of principal executive offices)
Registrant's telephone number, including area code: 517-788-0351
________________
Alan M. Wright
Senior Vice President and Chief Financial Officer
212 West Michigan Avenue
Jackson, Michigan 49201
517-788-0351
(Name, address and telephone number of agent for service)
________________
It is respectfully requested that the Commission send copies
of all notices, orders and communications to:
Denise M. Sturdy, Esq. Steven R. Loeshelle, Esq.
212 W. Michigan Avenue Reid & Priest
Jackson, Michigan 49201 40 West 57th Street
New York, N.Y. 10019
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of the Registration Statement
as determined 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
---
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________________________________________________
Title of each class Amount Proposed Proposed Amount of
of securities to be being maximum offering maximum aggregate registration
registered registered price per share offering price fee
_____________________________________________________________________________________________________________________
<C> <C> <C> <C> <C>
Class A Preferred Stock
Cumulative, No Par Value 8,000,000 Shares $25(1) $200,000,000(1) $68,966
_____________________________________________________________________________________________________________________
<FN>
(1) Estimated solely for the purpose of calculating the registration fee.
</TABLE>
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.<PAGE>
<PAGE> 1
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 JURISDICTION IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION.
PRELIMINARY PROSPECTUS (SUBJECT TO COMPLETION) DATED FEBRUARY 4, 1994
8,000,000 SHARES
CONSUMERS POWER COMPANY
CLASS A PREFERRED STOCK
(Cumulative, without Par Value)
Consumers Power Company ("Consumers" or the "Company") may offer from
time to time, up to 8,000,000 shares of its Class A Preferred Stock,
Cumulative, without Par Value ("New Preferred Stock"), in one or more
series at prices and on terms to be determined at the time of sale. This
Prospectus will be supplemented by one or more prospectus supplements
("Prospectus Supplement") which will reflect any agreement entered into by
the Company for the sale of New Preferred Stock and will set forth the
series designation, number of shares, proceeds to the Company, the initial
public offering price, if any, dividend rate, any redemption or sinking or
purchase fund terms and other specific terms of the applicable offering of
each series of New Preferred Stock in respect of which this Prospectus is
being delivered.
The New Preferred Stock offered hereby is expected to be listed on the New
York Stock Exchange.
________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The New Preferred Stock may be sold directly by the Company, through
agents designated from time to time or to or through underwriters. If any
agents of the Company or any underwriters are involved in the offering and
sale of any New Preferred Stock in respect of which this Prospectus is
being delivered, the names of such agents or underwriters, any applicable
discounts, commissions or allowances and other terms in connection with
such offering and sale will be set forth in a Prospectus Supplement. See
"Plan of Distribution".
________________
The date of this Prospectus is , 1994.<PAGE>
<PAGE> 2
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
NEW PREFERRED STOCK OFFERED HEREBY OR ANY OTHER SECURITIES OF THE COMPANY
AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
____________________
No person is authorized in connection with the offering made hereby to
give any information or to make any representation not contained or
incorporated by reference in this Prospectus or any Prospectus Supplement,
and any information or representation not contained or incorporated herein
must not be relied upon as having been authorized by Consumers or any
underwriter, dealer or agent. This Prospectus and any Prospectus
Supplement do not constitute an offer to sell or the solicitation of an
offer to buy any securities other than the securities to which they relate
or an offer to sell or the solicitation of an offer to buy such securities
in any circumstances in which such offer or solicitation is unlawful.
Neither the delivery of this Prospectus or any Prospectus Supplement nor
any sale made hereunder or thereunder shall, under any circumstances,
create any implication that the information contained or incorporated
herein or therein is correct as of any time subsequent to the date of such
information.
____________________
AVAILABLE INFORMATION
Consumers is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information may be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices located at 500 West Madison, 14th Floor,
Chicago, Illinois 60661 and at 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies of such materials can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The New Preferred Stock of
Consumers is expected to be listed on the New York Stock Exchange and
reports, proxy statements and other information concerning Consumers may
also be inspected and copied at the offices of such exchange at 20 Broad
Street, New York, New York 10005.
____________________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Consumers with the Commission (File
No. 1-5611) pursuant to the Exchange Act are hereby incorporated by
reference in this Prospectus and shall be deemed to be a part hereof:
(1) Consumers' Annual Report on Form 10-K for the year ended
December 31, 1992;
(2) Consumers' Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1993, June 30, 1993 and September 30,
1993;
(3) Consumers' Current Reports on Form 8-K dated March 31, 1993,
April 6, 1993, September 21, 1993, December 10, 1993, and
December 28, 1993; and
(4) Consumers' Call and Notice of Special Meeting of Shareholders
and related Proxy Statement, filed December 22, 1993.
All documents subsequently filed by Consumers pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference herein and shall be deemed 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").
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 a part of this Prospectus.
Consumers undertakes to provide without charge to each person to whom
a copy of this Prospectus has been delivered, upon 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 Consumers at its principal executive
offices located at 212 West Michigan Avenue, Jackson, Michigan 49201,
Attention: Office of the Secretary, telephone: (517) 788-1030.
Certain information contained in this Prospectus summarizes, is based
upon, or refers to information and financial statements contained in one
or more Incorporated Documents; accordingly, such information contained
herein is qualified in its entirety by reference to such documents and
should be read in conjunction therewith.
____________________
THE COMPANY
Consumers was incorporated under the laws of the State of
Michigan in 1968 and is the successor to a corporation of the same name
which was organized in Maine in 1910 and which did business in Michigan
from 1915 to 1968. As a result of a corporate restructuring in 1987,
Consumers is the principal subsidiary of CMS Energy, a Michigan
corporation. Consumers' principal executive offices are located at 212
West Michigan Avenue, Jackson, Michigan 49201, telephone: (517) 788-1030.
Consumers is a public utility serving almost six million of
Michigan's nine million residents in 67 of the 68 counties in Michigan's
Lower Peninsula. Consumers conducts its principal operations through two
business segments: electric operations and gas operations. The electric
operations include the generation, purchase, transmission and distribution
of electricity serving 61 of the 68 counties in the Lower Peninsula of
Michigan. The gas operations include the production, purchase, storage,
transmission and distribution of gas serving 40 of the 68 counties in the
Lower Peninsula of Michigan.
Consumers is subject to regulation by various federal, state and
local governmental agencies, including the Michigan Public Service
Commission (the "MPSC"), the Nuclear Regulatory Commission (the "NRC") and
the Federal Energy Regulatory Commission (the "FERC"). The MPSC has
powers of supervision and regulation of public utilities in Michigan with
respect to retail utility rates, certain accounting matters, services,
certain facilities, ascertainment of values, the issuance of securities
and various other matters. The NRC regulates the design, construction and
operation of Consumers' nuclear power plants, and uses of certain nuclear
material. The FERC has jurisdiction over certain aspects of Consumers'
gas business. Certain aspects of Consumers' electric operations are also
subject to regulation by the FERC, including compliance with the FERC's
rules and regulations respecting accounting applicable to "public
utilities" and "licensees", the transmission of electric energy in
interstate commerce and the rates and charges for the sale of such energy
at wholesale, the sale or merger of certain facilities, the construction,
operation and maintenance of hydroelectric projects and the issuance of
certain securities, as provided by the Federal Power Act.
Consumers' electric generating system consists of five
multi-unit fossil-fueled plants, two nuclear plants, one pumped storage
hydroelectric facility, seven gas combustion turbine plants and
13 hydroelectric plants. Consumers owns 100% of each of the above, except
that Consumers owns 93.3% of Campbell Plant Unit 3, a fossil-fueled plant
owned jointly with the Michigan Public Power Agency and Wolverine Power
Supply Cooperative, Inc., and 51% of the Ludington pumped storage
facilities which Consumers owns jointly with The Detroit Edison Company
(49%).
Consumers-owned system 1993 summer net demonstrated capability
(including the Ludington pumped storage facility of which Consumers has a
51% ownership) was 6,299 megawatts ("MW"). Consumers' peak demand for 1993
was 6,226 MW in August, 1993.
Consumers' gas distribution and transmission system consists of
20,768 miles of distribution mains and 1,084 miles of transmission mains,
throughout the Lower Peninsula of Michigan. Consumers owns and operates
five compressor stations with a total of 116,070 installed horsepower.
The foregoing information concerning Consumers does not purport
to be comprehensive. For additional information concerning Consumers'
business and affairs, including its capital requirements and external
financing plans, pending legal and regulatory proceedings and descriptions
of certain laws and regulations to which those companies are subject,
prospective purchasers should refer to the Incorporated Documents. See
"Incorporation of Certain Documents by Reference."
USE OF PROCEEDS
Consumers will apply the net proceeds from the sale of the New
Preferred Stock to the acquisition of utility property, the construction,
completion, extension or improvement of utility facilities, or for the
refinancing, discharge or refunding of obligations incurred by Consumers
to finance its utility operations, including short-term borrowing incurred
for such purposes and for other general corporate purposes.
SETTLEMENT ORDER
As more fully discussed in the Incorporated Documents, during
1993 Consumers experienced significant developments concerning the
recovery of costs incurred for the purchase of power from the Midland
Cogeneration Venture Limited Partnership (the "MCV Partnership"), an
independent power producer in which Consumers has an interest.
Consumers' cost recovery from its electric customers for costs
associated with its purchases from the MCV Partnership had been at issue
before the MPSC and the Michigan appellate courts since Consumers' first
attempt to recover those costs in its annual power supply cost recovery
proceedings. Because the MPSC consistently denied Consumers full recovery
of the costs it incurred for its purchases from the MCV Partnership, since
1990 Consumers incurred ongoing annual losses.
On March 31, 1993 the MPSC issued an opinion and order (the
"Settlement Order") approving with certain modifications a settlement
proposal (the "Revised Settlement Proposal") addressing these cost
recovery issues that had been filed by Consumers and other parties.
Although certain parties opposing the Revised Settlement Proposal
subsequently filed appeals of the MPSC's Settlement Order, with Consumers'
acceptance of the MPSC's decision on the Revised Settlement Proposal, the
uncertainties surrounding Consumers' cost recoveries related to its
purchases from the MCV Partnership were resolved to a sufficient degree to
enable Consumers to retroactively effect a quasi-reorganization as of
December 31, 1992 in which Consumers' accumulated deficit of $574 million
was eliminated against other paid-in capital. This amount includes the
$343 million after-tax loss Consumers recognized as the present value of
estimated future underrecoveries of power costs pursuant to the Settlement
Order discussed above. Except for adjustments to reflect the after-tax
expense for the time-value of money, estimated to be approximately
$26 million, $25 million and $23 million in 1993, 1994, and 1995,
respectively, and at various lower levels thereafter, no additional losses
are expected as a result of the cost recovery issues, unless actual future
experience materially differs from management's current estimates
regarding, among other things, the availability of the MCV Partnership's
facility and the future wholesale power market. These matters are
extensively discussed in the Incorporated Documents to which reference is
hereby made.
RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS
The Company has calculated ratios of earnings to fixed charges and
preferred dividends pursuant to Item 503 of SEC Regulation S-K as follows:
Nine Months Ended Twelve Months Ended
Ratio of Earnings September 30 December 31
----------------- ----------------------------------
to Fixed Charges and 1993 1992 1991 1990 1989 1988
---- ---- ---- ---- ---- ----
Preferred Dividends (a). . 2.40 - (b) - (c) - (d) 1.91 1.68
For the purpose of computing the ratio of earnings to combined
fixed charges, earnings represent net income before income taxes, net
interest charges and the estimated interest portion of lease rentals.
(a) "Earnings", as defined by SEC Regulation S-K, represent the
aggregate of (1) net income, (2) taxes based on income,
(3) investment tax credit adjustments -- net and (4) fixed
charges. "Fixed Charges" include interest (whether expensed
or capitalized), related amortization and interest
applicable to rentals charged to operating expenses.
"Preferred Dividends", as defined by SEC Regulation S-K, are
computed by dividing the preferred dividend requirement by
one hundred percent (100%) minus the effective income tax
rate.
(b) For the year ended December 31, 1992, fixed charges and
preferred dividends exceeded earnings by $366 million.
Earnings as defined include a $520 million pre-tax loss on
the settlement of cost recovery issues relating to power
purchases from the MCV Partnership and $(15) million for
potential customer refunds and other reserves related to
1992 but recorded in 1991. The ratio of earnings to fixed
charges and preferred dividends would have been 1.71
excluding these amounts.
(c) For the year ended December 31, 1991, fixed charges and
preferred dividends exceeded earnings by $314 million.
Earnings as defined include $398 million of pre-tax
write-downs and reserve amounts related to the abandonment
of the Midland Nuclear Facility and $44 million for
potential customer refunds and other reserves recorded in
1991 but related to 1992 and 1990. The ratio of earnings to
fixed charges and preferred dividends would have been 1.37
excluding these amounts.
(d) For the year ended December 31, 1990, fixed charges and
preferred dividends exceeded earnings by $234 million.
Earnings as defined include $716 million of pre-tax
write-downs related to the abandonment of the Midland
Nuclear Facility and $(29) million for potential customer
refunds and other reserves related to 1990 but recorded in
1991. The ratio of earnings to fixed charges and preferred
dividends would have been 2.36 excluding these amounts.
DESCRIPTION OF NEW PREFERRED STOCK
General
The Restated Articles of Incorporation of the Company, as amended
(the "Charter"), authorize the issuance of Common Stock, Preferred Stock,
$100 par value ("Preferred Stock"), in series of equal rank, Class A
Preferred Stock, without par value ("Class A Preferred Stock"), in series
of equal rank (the Preferred Stock and the Class A Preferred Stock being
sometimes collectively referred to herein as the "Company Preferred
Stock"), and Preference Stock in series of equal rank. The New Preferred
Stock will be issued as one or more series of Class A Preferred Stock.
Except in certain respects as to which there may be variations between
series, the shares within each series of Class A Preferred Stock will have
the same rank and be identical in all respects. The respects as to which
there may be variations as between series are (a) the number of shares
constituting each series and the distinguishing serial designation
thereof, (b) the dividend rate or rates, (c) the amounts payable on
redemption, (d) the amounts payable on liquidation, (e) the conversion
rights, if any, (f) the sinking or purchase fund provisions, if any, for
the redemption or purchase of shares, and (g) certain voting rights. The
Company's Board of Directors will have the power to establish the rights
and preferences of each such series.
The following outlines certain provisions of the Charter and the
Company's Indenture dated as of September 1, 1945, as supplemented and
amended, to Chemical Bank (successor to Manufacturers Hanover Trust
Company), as Trustee (the "Indenture"). The following outline does not
purport to be complete and is qualified in its entirety by express
reference to the Charter and the Indenture, copies of which are filed as
exhibits to the Registration Statement of which this Prospectus is a part.
The Class A Preferred Stock shall be pari passu with respect to the
Company's Preferred Stock as to dividends and payments in the event of the
voluntary or involuntary liquidation of the Company.
The Company will make application for the listing of the New
Preferred Stock on the New York Stock Exchange.
Terms of Specific Series of the New Preferred Stock
The Prospectus Supplement relating to each series of New Preferred
Stock will describe the following terms: (1) the designation of such
series of New Preferred Stock; (2) the number of shares of New Preferred
Stock of such series; (3) the purchase price and initial public offering
price, if any, of the shares of such series; (4) the dividend rate;
(5) the amounts payable on liquidation; (6) certain voting rights; (7) the
conversion rights, if any; (8) the terms and conditions pursuant to which,
and the prices at which, the Company may redeem shares of such series;
(9) the terms and conditions of any sinking or purchase fund requirements
applicable to such series; and (10) any other terms of such series not
inconsistent with the Charter.
Dividend Rights
The holders of the Company Preferred Stock of each series are
entitled to receive cumulative dividends, payable when and as declared by
the Board of Directors, at the rates determined for the respective series
thereof, before any dividends may be declared or paid on the Common Stock
or any other stock of the Company not having preference over the Company
Preferred Stock as to payment of dividends.
Quarterly dividends will be payable on each share of the New
Preferred Stock at the rate per annum shown in the title thereof, on the
first days of January, April, July and October in each year, cumulative
from the date of issue.
Certain Limitations on Common Stock Dividends
The Company's ability to pay dividends on its Common Stock is
restricted by its Indenture and the Charter. The Indenture provides that
the Company can only pay dividends on its Common Stock out of retained
earnings accumulated subsequent to September 30, 1945, provided that upon
such payment, there shall remain of such retained earnings an amount
equivalent to any deficiency in maintenance and replacement expenditures
as compared with maintenance and replacement requirements since
December 31, 1945.
The Charter provides two restrictions on its payment of dividends
on its Common Stock. First, prior to the payment of any Common Stock
dividend, the Company must reserve retained earnings after giving effect
to such dividend payment of at least (i) $7.50 per share on all then
outstanding shares of the Preferred Stock, (ii) in respect to the Class A
Preferred Stock 7.5% of the aggregate amount established by the Board of
Directors to be payable on the shares of each series thereof in the event
of involuntary liquidation of the Company, and (iii) $7.50 per share on
all then outstanding shares of all other stock over which the Company
Preferred Stock does not have preference as to the payment of dividends
and as to assets. Second, dividend payments during the 12 month period
ending with the month the proposed payment is to be paid are limited to:
(i) 50% of net income available for the payment of dividends if the ratio
of Common Stock and surplus to total capitalization and surplus for 12
consecutive calendar months within the 14 calendar months immediately
preceding the proposed dividend payment, adjusted to reflect the proposed
dividend, is less than 20%; and (ii) 75% of net income available for the
payment of dividends if the ratio of Common Stock and surplus to total
capitalization and surplus for 12 consecutive calendar months within the
14 calendar months immediately preceding the proposed dividend payment,
adjusted to reflect the proposed dividend, is at least 20% but less than
25%.
The Charter also prohibits the payment of dividends on Common Stock
if Consumers is in arrears on Company Preferred Stock dividend payments.
Voting Rights
Except as described below or otherwise provided in a Prospectus
Supplement, the New Preferred Stock will not have any voting rights.
Each holder of Common Stock and of Preferred Stock is entitled to
cumulative voting in the election of directors and on all other matters to
one vote for each share held. If four quarterly dividends on any series
of Company Preferred Stock should be in default, the holders of Company
Preferred Stock of all series would have the right, voting separately and
as a single class, to elect a majority of the directors of the Company,
and, in all matters other than the election of directors, each holder of
one or more shares of the Company Preferred Stock shall be entitled to one
vote for each such share of stock held. In the event of defaults
entitling the holders of Company Preferred Stock to elect a majority of
the directors as aforesaid, the holders of the Common Stock shall, subject
to the prior rights of the holders of the Preference Stock, have the
exclusive right, voting separately and as a class, to vote for and to
elect the greatest number of directors which shall constitute a minority
of the then authorized number of directors of the Company.
The affirmative vote of the holders of 66 2/3% of the outstanding
shares of Class A Preferred Stock, voting together as a single class, is
required for the adoption of a Charter amendment which would either (i)
authorize or create any class of stock preferred as to dividends or assets
over the Class A Preferred Stock, or (ii) change any of the rights and
preferences of the then outstanding Class A Preferred Stock.
The Charter requires the affirmative vote of the holders of 66 2/3%
of the outstanding shares of any series of Class A Preferred Stock to
change any of the rights and preferences of the shares of such series in
those respects in which the shares thereof may vary from the shares of
other series of Class A Preferred Stock.
The affirmative vote of the holders of 66 2/3% of the outstanding
Preferred Stock and Class A Preferred Stock (voting as separate classes)
is required for:
(a) the issue, sale or other disposition of any shares of
Company Preferred Stock or of any senior or equally ranking stock,
unless (i) net income available for dividends for a period of 12
consecutive calendar months within the 15 calendar months
immediately preceding the issuance, sale or disposition of such
stock is at least equal to two times annual dividend requirements
on all shares of Company Preferred Stock and of senior or equally
ranking stock to be outstanding, and (ii) gross income available
for the payment of interest for a period of 12 consecutive calendar
months within the 15 calendar months immediately preceding the
issuance, sale or disposition of such stock is at least equal to
one and one-half times the aggregate of annual interest
requirements on all outstanding indebtedness of the Company and
annual dividend requirements on all shares of Company Preferred
Stock and of senior or equally ranking stock to be outstanding; or
(b) the issue, sale or other disposition of any shares of
Company Preferred Stock or of any senior or equally ranking stock,
unless the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock and of the
surplus of the Company is not less than the aggregate amount
payable upon involuntary liquidation on all shares of Company
Preferred Stock and of senior or equally ranking stock to be
outstanding.
Redemption Provisions
The applicable Prospectus Supplement will describe the terms and
conditions, if any, pursuant to which, and the prices at which the Company
may redeem any New Preferred Stock. The Charter does not currently
operate to restrict the repurchase or redemption of shares of Company
Preferred Stock by the Company while there is any arrearage in the payment
of dividends on such stock.
Liquidation Rights
Upon voluntary or involuntary liquidation, the holders of the
Company Preferred Stock of each series, without preference between series,
are entitled to receive the amount determined to be payable on the shares
of such series (which, in the case of the New Preferred Stock will be
determined by the Board of Directors and set forth in one or more
applicable Prospectus Supplements) before any distribution of assets may
be made to the holders of the Common Stock or of any other stock not
having preference as to assets over the Company Preferred Stock.
Available assets, if insufficient to pay in full such amounts to the
holders of the Company Preferred Stock, are to be distributed pro rata to
the payment as follows: first of $100 per share on each share of
Preferred Stock outstanding and the amount established to be payable on
each outstanding share of Class A Preferred Stock in the event of
involuntary liquidation; second of accrued dividends on such shares; and,
third of any premium determined to be payable thereon.
After payment to the holders of the Company Preferred Stock of the
full preferential amounts to which they are entitled, upon liquidation,
the remaining assets to be distributed, if any, shall be distributed to
the holders of the Common Stock or any other stock over which the Company
Preferred Stock has preference as to assets.
Sinking Fund
The Company may determine to include sinking fund or purchase fund
provisions for any series of the New Preferred Stock. The terms of any
such provisions will be specified in the applicable Prospectus Supplement.
Preemptive Rights
The holders of the New Preferred Stock have no preemptive rights to
subscribe for or purchase any additional shares of Common Stock, Company
Preferred Stock or securities convertible into or exchangeable for or
entitling the holder or owner to subscribe for or purchase any shares of
capital stock.
Other Provisions
The New Preferred Stock will not be subject to further calls or to
assessment by the Company.
Transfer Agent and Registrar
Unless otherwise specified in a Prospectus Supplement, the Company
will act as transfer agent and registrar for the New Preferred Stock.
LEGAL OPINIONS
Opinions as to the legality of the New Preferred Stock will be
rendered for Consumers by Denise M. Sturdy, Esq., Finance Counsel for
Consumers. Certain legal matters with respect to the New Preferred Stock
will be passed upon by Reid & Priest, New York, N.Y., counsel for the
underwriters, dealers or agents who will be named in the related
Prospectus Supplement.
EXPERTS
The consolidated financial statements and schedules of Consumers as
of December 31, 1992 and 1991, and for each of the three years in the
period ended December 31, 1992 incorporated by reference in this
Prospectus, have been audited by Arthur Andersen & Co., independent public
accountants, as indicated in their reports dated April 5, 1993 with
respect thereto, and are included herein in reliance upon the authority of
said firm as experts in accounting and auditing in giving said reports.
Reference is made to said reports which include an explanatory paragraph
with respect to the change in the method of accounting for income taxes in
1992 as discussed in Note 6 to the consolidated financial statements and
with respect to the change in the method of accounting for postretirement
benefits other than pensions in 1992 as discussed in Note 10 to the
consolidated financial statements, and with respect to the fact that
Consumers effected a quasi-reorganization as of December 31, 1992 as
discussed in Note 1 to the consolidated financial statements.
With respect to the unaudited interim consolidated financial
information for the periods ended March 31, 1993 and 1992, June 30, 1993
and 1992, and September 30, 1993 and 1992, Arthur Andersen & Co. has
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate reports thereon state
that they did not audit and they do not express an opinion on that interim
consolidated financial information. Accordingly, the degree of reliance
on their reports on that information should be restricted in light of the
limited nature of the review procedures applied. In addition, the
accountants are not subject to the liability provisions of Section 11 of
the Securities Act of 1933, as amended (the "Securities Act"), for their
reports on the unaudited interim consolidated financial information
because those reports are not "reports" or a "part" of the registration
statement prepared or certified by the accountants within the meaning of
Sections 7 and 11 of the Securities Act.
Future consolidated financial statements of Consumers and the
reports thereon of Arthur Andersen & Co. also will be incorporated by
reference in this Prospectus in reliance upon the authority of that firm
as experts in giving those reports to the extent that said firm has
audited said consolidated financial statements and consented to the use of
their reports thereon.
The statements made as to matters of law and legal conclusions
under the caption "Description of New Preferred Stock" herein have been
reviewed by Denise M. Sturdy, Esq., Finance Counsel for Consumers, and
have been made in reliance upon her opinion and upon her authority as an
expert.
PLAN OF DISTRIBUTION
Consumers may sell the New Preferred Stock in one of four ways: (i)
through the solicitation of proposals of underwriters or dealers to
purchase New Preferred Stock, (ii) through underwriters or dealers on a
negotiated basis, (iii) directly to a limited number of purchasers or to a
single purchaser or (iv) through agents. The Prospectus Supplement
relating to a series of the New Preferred Stock ("Offered Stock") will set
forth the terms of the offering of Offered Stock, including the name or
names of any underwriters, dealers or agents, the purchase price of such
Offered Stock and the net proceeds to Consumers from such sale, any
underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Stock 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 the sale. The Offered Stock may be offered to
the public either through underwriting syndicates represented by one or
more managing underwriters or directly by one or more underwriting firms.
The underwriter or underwriters with respect to a particular underwritten
offering of the Offered Stock will be named in the Prospectus Supplement
relating to such offering and, if an underwriting syndicate is used, the
managing underwriter or underwriters will be set forth on the cover page
of such Prospectus Supplement. Unless otherwise set forth in a Prospectus
Supplement, the obligations of the underwriters to purchase the Offered
Stock will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all such Offered Stock if any
is purchased.
Offered Stock may be sold directly by Consumers or through agents
designated by Consumers from time to time. The applicable Prospectus
Supplement will set forth the name of any agent involved in the offer or
sale of the Offered Stock and any commissions payable by Consumers to such
agent. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment.
Agents and underwriters may be entitled under agreements entered
into with Consumers to indemnification by Consumers against certain civil
liabilities, including certain liabilities under the Securities Act.
The place and time of delivery for the Offered Stock in respect of
which this Prospectus is delivered will be set forth in the accompanying
Prospectus Supplement.
____________________<PAGE>
<PAGE> II-1
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated
Amount
--------
Filing fee -- Securities and Exchange
Commission $ 68,966
Listing on New York Stock Exchange 58,000
Rating Agency Fees 100,000
Preparation of Stock Certificates 4,000
Printing 30,000
Services of counsel 30,000
Services of independent public accountants,
Arthur Anderson & Co. 35,000
Blue Sky fees and expenses 10,000
Miscellaneous 15,000
--------
Total: $350,966
========
Item 15. Indemnification of Directors and Officers.
The following resolution was adopted by the Board of Directors of
Consumers on May 6, 1987:
RESOLVED: That effective March 1, 1987 the Company shall
indemnify to the full extent permitted by law every person
(including the estate, heirs and legal representatives of such
person in the event of the decease, incompetency, insolvency or
bankruptcy of such person) who is or was a director, officer,
partner, trustee, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer,
partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all
liability, costs, expenses, including attorneys' fees, judgments,
penalties, fines and amounts paid in settlement, incurred by or
imposed upon the person in connection with or resulting from any
claim or any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative, investigative
or of whatever nature, arising from the person's service or
capacity as, or by reason of the fact that the person is or was, a
director, officer, partner, trustee, employee or agent of the
Company or is or was serving at the request of the Company as a
director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise. Such right of indemnification shall not be deemed
exclusive of any other rights to which the person may be entitled
under statute, bylaw, agreement, vote of shareholders or
otherwise.
Article V of the Restated Articles of Incorporation reads:
A director shall not be personally liable to the Company or its
shareholders for monetary damages for breach of duty as a director except
(i) for a breach of the director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for a
violation of Section 551(1) of the Michigan Business Corporation Act, and
(iv) any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article V, and no modification
to its provisions by law, shall apply to, or have any effect upon, the
liability or alleged liability of any director of the Company for or with
respect to any acts or omissions of such director occurring prior to such
amendment, repeal or modification.
Article VI of the Restated Articles of Incorporation reads:
Each director and each officer of the Company shall be indemnified
by the Company to the fullest extent permitted by law against expenses
(including attorneys' fees), judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with the defense of any proceeding in which he or she was or is a party or
is threatened to be made a party by reason of being or having been a
director or an officer of the Company. Such right of indemnification is
not exclusive of any other rights to which such director or officer may be
entitled under any now or thereafter existing statute, any other provision
of these Articles, bylaw, agreement, vote of shareholders or otherwise.
If the Business Corporation Act of the State of Michigan is amended after
approval by the shareholders of this Article VI to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the Business
Corporation Act of the State of Michigan, as so amended. Any repeal or
modification of this Article VI by the shareholders of the Company shall
not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
Sections 561 through 571 of the Michigan Business Corporation Act provides
as follows:
Sec. 561. A corporation has the power to indemnify a person who
was or is a party or is threatened to be made a party to a threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative and whether formal or informal,
other than an action by or in the right of the corporation, by reason of
the fact that he or she is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust, or
other enterprise, whether for profit or not, against expenses, including
attorneys' fees, judgments, penalties, fines, and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with the action, suit, or proceeding, if the person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation or its shareholders, and with
respect to a criminal action or proceeding, if the person had no
reasonable cause to believe his or her conduct was unlawful. The
termination of an action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the corporation or its
shareholders, and, with respect to a criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
Sec. 562. A corporation has the power to indemnify a person who
was or is a party or is threatened to be made a party to a threatened,
pending, or completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that he or she is
or was a director, officer, employee, or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise,
whether for profit or not, against expenses, including attorneys' fees,
and amounts paid in settlement actually and reasonably incurred by the
person in connection with the action or suit, if the person acted in good
faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders.
Indemnification shall not be made for a claim, issue, or matter in which
the person has been found liable to the corporation except to the extent
authorized in section 564c.
Sec. 563. To the extent that a director, officer, employee, or
agent of a corporation has been successful on the merits or otherwise in
defense of an action, suit, or proceeding referred to in section 561 or
562, or in defense of a claim, issue, or matter in the action, suit, or
proceeding, he or she shall be indemnified against actual and reasonable
expenses, including attorneys' fees, incurred by him or her in connection
with the action, suit, or proceeding and an action, suit, or proceeding
brought to enforce the mandatory indemnification provided in this section.
Section 564a. (1) An indemnification under section 561 or 562,
unless ordered by the court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee, or agent is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in sections 561 and 562 and upon an evaluation of the
reasonableness of expenses and amounts paid in settlement. This
determination and evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the board consisting of
directors who are not parties or threatened to be made parties to the
action, suit, or proceeding.
(b) If a quorum cannot be obtained under subdivision (a), by
majority vote of a committee duly designated by the board and consisting
solely of 2 of more directors not at the time parties or threatened to be
made parties to the action, suit, or proceeding.
(c) By independent legal counsel in a written opinion, which
counsel shall be selected in 1 of the following ways:
(i) By the board or its committee in the manner prescribed
in subdivision (a) or (b).
(ii) If a quorum of the board cannot be obtained under
subdivision (a) and a committee cannot be designated under
subdivision (b), by the board.
(d) By all independent directors who are not parties or
threatened to be made parties to the action, suit, or proceeding.
(e) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties of
the action, suit, or proceeding may not be voted.
(2) In the designation of a committee under subsection (1)(b) or
in the selection of independent legal counsel under subsection (1)(c)(ii),
all directors may participate.
(3) If a person is entitled to indemnification under section 561
or 562 for a portion of expenses, including reasonable attorneys' fees,
judgments, penalties, fines, and amounts paid in settlement, but not for
the total amount, the corporation may indemnify the person for the portion
of the expenses, judgments, penalties, fines, or amounts paid in
settlement for which the person is entitled to be indemnified.
Sec. 564b. (1) A corporation may pay or reimburse the reasonable
expenses incurred by a director, officer, employee, or agent who is a
party or threatened to be made a party to an action, suit, or proceeding
in advance of final disposition of the proceeding if all of the following
apply:
(a) The person furnishes the corporation a written affirmation of
his or her good faith belief that he or she has met the applicable
standard of conduct set forth in sections 561 and 562.
(b) The person furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay the advance if it is
ultimately determined that he or she did not meet the standard of conduct.
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification under this
act.
(2) The undertaking required by subsection (1)(b) must be an
unlimited general obligation of the person but need not be secured.
(3) Determinations and evaluations under this section shall be
made in the manner specified in section 564a.
Section 564c. A director, officer, employee, or agent of the
corporation who is a party or threatened to be made a party to an action,
suit, or proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On receipt
of an application, the court after giving any notice it considers
necessary may order indemnification if it determines that the person is
fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not he or she met the applicable
standard of conduct set forth in sections 561 and 562 or was adjudged
liable as described in section 562, but if he or she was adjudged liable,
his or her indemnification is limited to reasonable expenses incurred.
Sec. 565. (1) The indemnification or advancement of expenses
provided under sections 561 to 564c is not exclusive of other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the articles of incorporation, bylaws, or a contractual
agreement. The total amount of expenses advanced or indemnified from all
sources combined shall not exceed the amount of actual expenses incurred
by the person seeking indemnification or advancement of expenses.
(2) The indemnification provided for in sections 561 to 565
continues as to a person who ceases to be a director, officer, employee,
or agent and shall inure to the benefit of the heirs, executors, and
administrators of the person.
Sec. 567. A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, partner, trustee, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as
such, whether or not the corporation would have power to indemnify him or
her against liability under sections 561 to 565.
Sec. 569. For purposes of sections 561 to 567, "corporation"
includes all constituent corporations absorbed in a consolidation or
merger and the resulting or surviving corporation, so that a person who is
or was a director, officer, partner, trustee, employee, or agent of the
constituent corporation or is or was serving at the request of the
constituent corporation as a director, officer, employee, or agent of
another foreign or domestic corporation, partnership, joint venture,
trust, or other enterprise whether for profit or not shall stand in the
same position under the provisions of this section with respect to the
resulting or surviving corporation as the person would if he or she had
served the resulting or surviving corporation in the same capacity.
Sec. 571. For the purposes of sections 561 to 567:
(a) "Fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan.
(b) "Other enterprises" shall include employee benefit plans.
(c) "Serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation
which imposes duties on, or involves services by, the director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or its beneficiaries.
(d) A person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be considered to have
acted in a manner "not opposed to the best interests of the corporation or
its shareholders" as referred to in sections 561 and 562.
Officers and directors are covered within specified monetary
limits by insurance against certain losses arising from claims made by
reason of their being directors or officers of Consumers or of Consumers'
subsidiaries and Consumers' officers and directors are indemnified against
such losses by reason of their being or having been directors of officers
of another corporation, partnership, joint venture, trust or other
enterprise at Consumers' request. In addition, Consumers has indemnified
each of its present directors by contracts that contain affirmative
provisions essentially similar to those in sections 561 through 571 of the
Michigan Business Corporation Act cited above.
Item 16. Exhibits.
Exhibit No.
(1) - Form of Underwriting Agreement.
(4)(a) - Composite Working Copy of Indenture dated as of September 1,
1945, between Consumers Power Company and Chemical Bank
(successor to Manufacturers Hanover Trust Company), as
Trustee, including therein indentures supplemental thereto
through the Forty-third Supplemental Indenture dated as of
May 1, 1979. (Designated in Consumers Power Company's
Registration No 2-65973 as Exhibit (b)(1)(4).)
Indentures Supplemental thereto:
Consumers
Power Company
Sup Ind/Dated as of File Reference Exhibit
------------------- -------------- -------
44th 11/15/79 Reg No 2-65973 (b)(1)-7
45th 01/15/80 Reg No 2-68900 (b)(1)-5
46th 01/15/80 Reg No 2-69704 (4)(b)
47th 06/15/80 Form 10-K for
year end Dec 31,
1980, File
No 1-5611 (4)(b)
48th 03/15/81 Reg No 2-73741 (4)(b)
49th 11/01/81 Reg No 2-75542 (4)(b)
50th 03/01/82 Form 10-K for
year end Dec 31,
1981, File
No 1-5611 (4)(b)
51st 08/10/82 Reg No 2-78842 (4)(f)
52nd 08/31/82 Reg No 2-79390 (4)(f)
53rd 12/01/82 Reg No 2-81077 (4)(f)
54th 05/01/83 Reg No 2-84172 (4)(e)
55th 09/15/83 Reg No 2-86751 (4)(e)
56th 10/15/83 Reg No 2-87735 (4)(e)
57th 03/01/84 Reg No 2-89215 (4)(e)
58th 07/16/84 Form 10-Q for
quarter ended
June 30, 1984,
File No 1-5611 (4)(f)
59th 10/01/84 Reg No 2-93438 (4)(c)
60th 06/01/85 Form 10-Q for
quarter ended
June 30, 1985,
File No 1-5611 (4)(f)
61st 10/15/86 Reg No 33-9732 (4)(e)
63rd 04/15/87 Form 10-Q for
quarter ended
June 30, 1987
File No 1-5611 (4)(f)
64th 06/15/87 Form 10-Q for
quarter ended
June 30, 1987
File No 1-5611 (4)(g)
65th 02/15/88 Form 8-K dated
Feb 18, 1988
File No 1-5611 (4)
66th 04/15/88 Form 10-Q for
quarter ended
March 31, 1988
File No. 1-5611 (4)(d)
67th 11/15/89 Reg No 33-31866 (4)(d)
68th 06/15/93 Reg No 33-41126 (4)(c)
69th 09/15/93 Form 8-K dated
Sept 21, 1993
File No. 1-5611 (4)
(4)(b) - Composite Articles of Incorporation of Consumers Power
Company, as amended.
(4)(c) - Copy of the By-Laws of Consumers Power Company. (Designated
in Consumers Power Company Form 10-K for the year ended
December 31, 1991, File No 1-5611, as Exhibit (3)(d).)
(5) - Opinion of Counsel.
(12) - Computation of Ratios of Earnings to Fixed Charges and
Preferred Dividends.
(15) - Letter regarding unaudited interim financial information.
(23)(a) - Consent of Counsel is contained in Exhibit 5 hereto.
(23)(b) - Consent of Arthur Andersen & Co.
(23)(c) - Consent of David A. Mikelonis, Senior Vice President and
General Counsel of Consumers.
(24) - Power of Attorney.
Exhibits listed above which have been filed with the Securities
and Exchange Commission are incorporated herein by reference with the same
effect as if filed with this registration statement.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933; (ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; (iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement; provided, however, that (i) and (ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and 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 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under 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.
(6) That (1) for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this Registration Statement as of the time it was
declared effective; and (2) for the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
_______________________________________<PAGE>
<PAGE>
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 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jackson, and State of Michigan,
on the 4th day of February, 1994.
CONSUMERS POWER COMPANY
By /s/ Michael G. Morris
---------------------------------
Michael G. Morris
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the 4th day of February, 1994.
Name Title
---- -----
(i) Principal executive officer:
President and
/s/ Michael G. Morris Chief Executive Officer
--------------------------
Michael G. Morris
(ii) Principal financial officer:
Senior Vice President and
/s/ A M Wright Chief Financial Officer
--------------------------
Alan M. Wright
(iii) Controller or principal
accounting officer:
Vice President and
/s/ Dennis DaPra Controller
--------------------------
Dennis DaPra
<PAGE>
<PAGE>
Name Title
---- -----
* Director
------------------------------
(William T. McCormick, Jr.)
* Director
------------------------------
(Victor J. Fryling)
* Director
------------------------------
(Earl D. Holton)
* Director
------------------------------
(Lois A. Lund)
* Director
------------------------------
(Kenneth Whipple)
* Director
------------------------------
(Frank H. Merlotti)
Director
------------------------------
(William U. Parfet)
* Director
------------------------------
(Percy A. Pierre)
* Director
------------------------------
(T. F. Russell)
* Director
------------------------------
(S. Kinnie Smith, Jr.)
* Director
------------------------------
(Robert D. Tuttle)
* Director
------------------------------
(James J. Duderstadt)
*By /s/ A M Wright
---------------------
Alan M. Wright
Attorney-in-fact
<PAGE>
<PAGE>
EXHIBIT NO. (1)
<PAGE>
<PAGE> 1
EXHIBIT (1)
_________ Shares
CONSUMERS POWER COMPANY
Class A Preferred Stock (Cumulative, without par value)
_______________________________
Underwriting Agreement
____________, 1994
To the Representatives named in
Schedule I hereto of the Under-
writers named in Schedule II
hereto
Dear Sirs:
Consumers Power Company, a Michigan corporation (the
"Company"), proposes to issue and sell to the several Underwriters (as
defined in Section 14 hereof) _________ shares of its Class A Preferred
Stock (Cumulative, without par value) (the "Securities") as indicated in
Schedule II. The Underwriters have designated the Representatives to
execute this Agreement on their behalf and to act for them in the manner
provided in this Agreement.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission"), in accordance with the provisions
of the Securities Act of 1933, as amended (the "Act"), a registration
statement on Form S-3 (Registration No. __-_____) including a prospectus
relating to the Securities and such registration statement has become
effective under the Act. The registration statement at the time it
initially became effective and as it may have been thereafter amended to
the date of this Agreement (including the documents then incorporated by
reference therein) is hereinafter referred to as the "Registration
Statement." The prospectus forming a part of the Registration Statement at
the time the Registration Statement initially became effective (including
the documents then incorporated by reference therein) is hereinafter
referred to as the "Basic Prospectus" provided that in the event that the
Basic Prospectus shall have been amended, revised or supplemented prior to
the date of this Agreement, or if the Company shall have supplemented the
Basic Prospectus by filing any documents pursuant to Section 13 or 14 or
15 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the time the Registration Statement initially became
effective and prior to the date of this Agreement, which documents are
deemed to be incorporated in the Basic Prospectus, the term "Basic
Prospectus" shall also mean such prospectus as so amended, revised or
supplemented. The Basic Prospectus, as it shall be supplemented to
reflect the terms of the offering and sale of the Securities by a
prospectus supplement relating to the Securities, to be filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the
Act, is hereinafter referred to as the "Prospectus." Any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to include only
amendments or supplements to the Registration Statement or Prospectus, as
the case may be, and documents incorporated by reference therein after the
date of this Agreement and prior to the termination of the offering of the
Securities by the Underwriters.
1. Purchase and Sale: Upon the basis of the representations and
warranties and on the terms and subject to the conditions herein set
forth, the Company agrees to sell to the respective Underwriters,
severally and not jointly, and the respective Underwriters, severally and
not jointly, agree to purchase from the Company, at the purchase price of
$______ a share (the "Purchase Price"), the respective number of shares of
Securities set opposite their names in Schedule II hereto.
The Company is advised by the Representatives that the
Underwriters propose to make a public offering of their respective
portions of the Securities as soon as this Agreement has become effective.
The Company is further advised by the Representatives that the Securities
are to be offered to the public initially at $______ a share (the public
offering price) and to certain dealers selected by you at a price that
represents a concession not in excess of $.__ a share under the public
offering price, and that any Underwriter may allow, and such dealers may
allow, a concession, not in excess of $.__ a share, to certain other
dealers.
2. Payment and Delivery: Payment for the Securities shall be
made to the Company or its order by bank check or checks, as requested by
the Company, payable in New York Clearing House funds, at the offices of
Reid & Priest, 40 West 57th Street, New York, New York, 10019 (or such
other place or places of payment as shall be agreed upon by the Company
and the Underwriters in writing), upon the delivery of the Securities at
said offices (or such other place or places of delivery as shall be agreed
upon by the Company and the Representatives) to the Representatives for
the respective accounts of the Underwriters against receipt therefor
signed by the Representatives on behalf of themselves and as agent for the
other Underwriters. Such payment and delivery shall be made at 10:00
A.M., New York time (or on such later business day as shall be agreed upon
by the Company and the Representatives in writing), unless postponed in
accordance with the provisions of Section 10 hereof. The day and time at
which payment and delivery for the Securities are to be made is herein
called the "Time of Purchase".
Delivery of the Securities shall be made in definitive,
fully registered form in authorized denominations registered in such names
as the Representatives may request in writing to the Company not later
than three full business days prior to the Time of Purchase, or if no such
request is received, in the names of the respective Underwriters for the
respective number of shares of Securities, set forth opposite the name of
each Underwriter in Schedule II, in denominations selected by the Company.
The Company agrees to make the Securities available for
inspection by the Underwriters at the offices of ____________________
at least 24 hours prior to the Time of Purchase, in definitive, fully
registered form, and as requested pursuant to the preceding paragraph.
3. Conditions of Underwriters' Obligations: The several
obligations of the Underwriters hereunder are subject to the accuracy of
the warranties and representations on the part of the Company and to the
following other conditions:
(a) That all legal proceedings to be taken in connection
with the issue and sale of the Securities shall be reasonably
satisfactory in form and substance to Messrs. Reid & Priest, of
New York, New York, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Representatives
shall be furnished with the following opinions, dated the day of
the Time of Purchase:
(1) Opinion of Denise M. Sturdy, Esq., finance
counsel to the Company, substantially to the effect set forth in
Exhibit A to this Agreement; and
(2) Opinion of Messrs. Reid & Priest, of New
York, New York, counsel to the Underwriters, substantially to the
effect set forth in Exhibit B to this Agreement.
(c) That at the Time of Purchase the Representatives
shall have received a letter from Arthur Andersen & Co. in form
and substance satisfactory to the Representatives, on and dated as
of the day of the Time of Purchase, (i) confirming that they are
independent public accountants within the meaning of the Act and
the applicable published rules and regulations of the Commission
thereunder, (ii) stating that in their opinion the financial
statements examined by them and included in the Registration
Statement complied as to form in all material respects with the
applicable accounting requirements of the Commission, including
applicable published rules and regulations of the Commission, and
(iii) covering, as of a date not more than five business days
prior to the date of such letter, such other matters as the
Representatives reasonably request.
(d) [That none of any amendment to the Registration
Statement, the Prospectus, or any amendment or supplement to the
Prospectus (including any document which would be deemed
incorporated in the Prospectus by reference), filed subsequent to
the effectiveness of this Agreement and prior to the Time of
Purchase shall contain material information (i) substantially
different from that contained in or contemplated by the
Registration Statement, as amended prior to the effectiveness of
this Agreement, or in the Basic Prospectus (including any document
which would be deemed incorporated in the Basic Prospectus by
reference prior to the effectiveness of this Agreement) and (ii)
relating to a material change in the business, properties or
financial condition of the Company which, in the judgment of the
Representatives, after reasonable inquiries on the part of the
Representatives, impairs the marketability of the Securities.]
(e) That, at or before 8:00 P.M., New York time on the
first full business day after the effective date of this
Agreement, or at such later time and day as the Representatives
may from time to time consent to in writing or by telegram
confirmed in writing, an appropriate order or orders of the
Michigan Public Service Commission, necessary to permit the sale
of the Securities to the Underwriters, shall be in effect.
(f) That, at the Time of Purchase, the Company shall have
delivered to the Representatives a certificate of an executive
officer of the Company to the effect that, to the best of his
knowledge, information and belief there has been no material
adverse change in the business, properties or financial condition
of the Company from that set forth in the Registration Statement
or Prospectus (other than changes referred to in or contemplated
by the Registration Statement or Prospectus).
(g) That any post-effective amendment to the Registration
Statement necessary, at the time this Agreement is executed, to be
declared effective shall have become effective not later than 5:30
P.M., New York time on the business day following the date of
execution of this Agreement; and that no stop order suspending the
effectiveness of either Registration Statement shall have been
issued and no proceeding for that purpose shall have been
instituted or, to the knowledge of the Company, threatened by the
Commission.
(h) That the Company shall have performed such of its
obligations under this Agreement as are to be performed at or
before the Time of Purchase by the terms hereof.
(i) That between the date of the execution of this
Agreement and the day of the Time of Purchase, (i) there has been
no downgrading of the investment ratings of any of the Company's
securities by Standard & Poor's Corporation, Moody's Investors
Service, Inc. or Duff & Phelps Credit Rating Co., and (ii) the
Company shall not have been placed on "credit watch" or "credit
review" with negative implications by any of such statistical
rating organizations if, in the case of such placement on "credit
watch" or "credit review", such occurrence shall, in the
reasonable judgment of the Representatives, after reasonable
inquiries on the part of the Representatives, impair the
marketability of the Securities.
(j) That any additional documents or agreements
reasonably requested by counsel to the Underwriters to permit such
counsel to deliver opinions hereunder shall have been provided to
them.
(k) That any filing of the Prospectus and any supplements
thereto required pursuant to Rule 424 under the Act have been made
in compliance with Rule 424 in the time periods provided by Rule
424, or at such later time as may be acceptable to the
Representatives.
4. Conditions of the Company's Obligations: The obligations of
the Company hereunder are subject to the satisfaction of the conditions
set forth in Sections 3(e) and 3(g).
5. Certain Covenants of the Company: In further consideration
of the agreements of the Underwriters herein contained, the Company
covenants as follows:
(a) To promptly file with the Commission the Prospectus,
pursuant to Rule 424 under the Act.
(b) As soon as the Company is advised thereof, to advise
the Representatives and confirm the advice in writing of any
request made by the Commission for amendments to the Registration
Statement or Prospectus or for additional information with respect
thereto or of the entry of a stop order suspending the
effectiveness of the Registration Statement or of the initiation
or threat of any proceedings for that purpose and, if such a stop
order should be entered by the Commission, to make every
reasonable effort to obtain the lifting or removal thereof.
(c) To deliver to the Underwriters, without charge, as
soon as practicable, and from time to time thereafter during such
period of time (not exceeding nine months) after the date of the
Prospectus as they are required by law to deliver a prospectus, as
many copies of the Prospectus (as supplemented or amended if the
Company shall have made any supplements or amendments thereto) as
the Representatives may reasonably request; and in case any
Underwriter is required to deliver a prospectus after the
expiration of nine months after the date of the Prospectus, to
furnish to the Representatives, upon request, at the expense of
such Underwriter, a reasonable quantity of a supplemental
prospectus or of supplements to the Prospectus complying with
Section 10(a)(3) of the Act.
(d) To furnish to the Representatives a copy, certified
by the Secretary or an Assistant Secretary of the Company, of each
Registration Statement as initially filed with the Commission and
of all amendments thereto (including all exhibits) and full and
complete sets of all comments of the Commission or its staff and
all responses thereto with respect to the Registration Statement,
and to furnish to the Underwriters conformed copies of the
Registration Statement without exhibits.
(e) For such period of time (not exceeding nine months)
after the date of the Prospectus as they are required by law to
deliver a prospectus in respect of the Securities, if any event
shall have occurred as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it becomes
necessary to amend or supplement the prospectus to comply with
law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus and furnish,
at its own expense, to the Underwriters and to dealers (whose
names and addresses are furnished to the Company by the
Representatives) to whom Securities may have been sold by the
Representatives on behalf of the Underwriters and, upon request,
to any other dealers making such request, such number of copies of
such amendments or supplements to the Prospectus as may be
reasonably requested.
(f) To make generally available to the Company's security
holders, as soon as practicable, an "earning statement" (which
need not be audited by independent public accountants) covering a
twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months
thereafter, which shall satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(g) To use its best efforts to qualify the Securities for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Representatives may designate within six
months after the date hereof and to pay, or to reimburse the
Underwriters and their counsel for, reasonable legal fees, filing
fees and expenses in connection therewith (including such fees and
expenses paid and incurred prior to the date hereof) up to an
amount not to exceed $5,000, provided, however, that the Company
shall not be required to qualify as a foreign corporation or to
file a consent to service of process or to file annual reports or
to comply with any other requirements deemed by the Company to be
unduly burdensome.
(h) To pay all expenses, fees and taxes (other than
transfer taxes on sales by the respective Underwriters) in
connection with the issuance and delivery of the Securities,
except that the Company shall be required to pay the fees and
disbursements (other than fees and disbursements referred to in
paragraph (g) of this Section 5) of Reid & Priest, counsel to the
Underwriters, only in the events provided in paragraph (i) of this
Section 5, the Underwriters hereby agreeing to pay such fees and
disbursements in any other event, and that except as provided in
Section (i), the Company shall not be responsible for any
out-of-pocket expenses of the Underwriters in connection with
their services hereunder.
(i) If the Underwriters shall not take up and pay for the
Securities due solely to the failure of the Company to comply with
any of the conditions specified in Section 3 hereof, or, if this
Agreement shall be terminated in accordance with the provisions of
Section 11 hereof, to pay the reasonable fees and disbursements of
Reid & Priest, counsel to the Underwriters, and, if the
Underwriters shall not take up and pay for the Securities due to
failure of the Company to comply with the conditions specified in
Section 3 hereof, to reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount not
exceeding a total of $3,000, incurred in connection with the
financing contemplated by this Agreement.
(j) Prior to the termination of the offering of the
Securities, to not file any amendment to the Registration
Statement or supplement to the Prospectus (including the Basic
Prospectus) unless the Company has furnished the Representatives
and counsel to the Underwriters with a copy for their review and
comment a reasonable time prior to filing, or any such amendment
or supplement to which such counsel shall reasonably object on
legal grounds in writing, after consultation with the
Representatives.
(k) Subsequent to the effectiveness of this Agreement and
prior to the Time of Purchase, to not, without the prior written
consent of the Representatives, issue or announce the proposed
issuance of any preferred stock of the Company, other than the
Securities.
6. Representations and Warranties of the Company: The Company
represents and warrants to each of the Underwriters that the Registration
Statement has become effective under the Act; any filing of the Prospectus
and any supplements thereto required pursuant to Rule 424(b) have been or
will be made in the manner required by Rule 424(b) and within the time
period required by Section 3(k) hereof; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purposes are pending before or, to the knowledge of
the Company, threatened by the Commission. On the effective date of the
Registration Statement, the Registration Statement and the Basic
Prospectus complied, or were deemed to have complied, and on its issue
date, the Prospectus will comply, or will be deemed to comply, in all
material respects with the applicable provisions of the Act and the
published rules and regulations of the Commission, the Registration
Statement on its effective date did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus, as of its issue date and, as amended or supplemented, if
applicable, as of the Time of Purchase, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to any Underwriter with respect to any statements or
omissions made therein in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representatives on
behalf of, any Underwriter expressly for use therein.
7. Representation and Warranties of Underwriters: Each
Underwriter represents and warrants that the information furnished in
writing to the Company through the Representatives expressly for use in
the Registration Statement and Prospectus is correct in all material
respects as to such Underwriter. Each Underwriter, in addition to other
information furnished to the Company for use in the Registration Statement
and Prospectus, herewith furnishes to the Company for use in the
Registration Statement and Prospectus, the information stated herein with
regard to the public offering, if any, by such Underwriter and represents
and warrants that such information is correct in all material respects as
to such Underwriter.
8. Indemnification:
(a) The Company agrees, to the extent permitted by law,
to indemnify and hold harmless each of the Underwriters and each
person, if any, who controls any such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange
Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject
under the Act or otherwise, and to reimburse the Underwriters and
such controlling person or persons, if any, for any legal or other
expenses incurred by them in connection with defending any action,
suit or proceeding (including governmental investigations) as
provided in Section 8(b) hereof, insofar as such losses, claims,
damages, liabilities or actions, suits or proceedings (including
governmental investigations) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary
prospectus (if used prior to the date of the Basic Prospectus),
the Basic Prospectus (if used prior to the date of the
Prospectus), the Prospectus, or, if the Prospectus shall be
amended or supplemented, in the Prospectus as so amended or
supplemented (if such Prospectus or such Prospectus as amended or
supplemented is used after the period of time referred to in
Section 5(e) hereof, it shall contain or be used with such
amendments or supplements as the Company deems necessary to comply
with Section 10(a) of the Act), or arise out of or are based upon
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
such untrue statement or alleged untrue statement or omission
which was made in such preliminary prospectus, Basic Prospectus,
Registration Statement or Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by, or through the
Representatives on behalf of, any Underwriter expressly for use
therein, and except that this indemnity shall not inure to the
benefit of any Underwriter (or any person controlling such
Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Securities to
any person if a copy of the Prospectus, as the same may then be
supplemented or amended (excluding, however, any document then
incorporated or deemed incorporated therein by reference), was not
sent or given by or on behalf of such Underwriter to such person
(i) with or prior to the written confirmation of the sale involved
or (ii) as soon as available after such written confirmation,
relating to an event occurring prior to the payment for and
delivery to such person of the Securities involved in such sale,
and the alleged omission or alleged untrue statement was corrected
in the Prospectus as supplemented or amended at such time.
(b) If a claim is made or an action, suit or proceeding
(including governmental investigations) is commenced or threatened
against any Underwriter or any such controlling person (each, an
"Indemnified Person") as to which such Indemnified Person may seek
indemnity under Section 8(a), such Indemnified Person shall notify
the Company promptly after any assertion of such claim threatening
to institute an action or proceeding against such Indemnified
Person and promptly after such Indemnified Person shall have been
served with a summons or other first legal process giving
information as to the nature and basis of the claim. Failure so to
notify the Company shall not, however, relieve the Company from
any liability which it may have on account of the indemnity under
Section 8(a) if the Company has not been prejudiced in any
material respect by such failure. The Company shall assume the
defense of any such litigation or proceeding, including the
employment of counsel and the payment of all expenses. Any
Indemnified Person shall have the right to participate in such
litigation or proceeding and to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Company and the Indemnified
Person shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any
impleaded parties) include (x) the Company and (y) the Indemnified
Person and, in the written opinion of counsel to such Indemnified
Person (concurred in by counsel to the Company), representation of
both parties by the same counsel would be inappropriate due to
actual or likely conflicts of interest between them, in either of
which cases the reasonable fees and expenses of counsel for such
Indemnified Persons shall be reimbursed by the Company. If there
is a conflict as described in clause (ii) above, and the
Indemnified Persons have participated in the litigation or
proceeding utilizing separate counsel whose fees and expenses have
been reimbursed by the Company, and the Indemnified Persons, or
any of them, are found to be solely liable, such Indemnified
Persons shall repay to the Company such fees and expenses of such
separate counsel as the Company shall have reimbursed. It is
understood that the Company shall not, in connection with any
litigation or proceeding or related litigation or proceedings in
the same jurisdiction as to which the Indemnified Persons are
entitled to such separate representation, be liable under this
Agreement for the reasonable fees and out-of-pocket expenses of
more than one separate firm (together with not more than one
appropriate local counsel) for all such Indemnified Persons.
Subject to the next paragraph, all such fees and expenses shall be
reimbursed by payment to the Indemnified Persons of such
reasonable fees and expenses of counsel promptly after payment
thereof by the Indemnified Persons. Such firm shall be designated
in writing by the Representatives.
In furtherance of the requirement above that fees and
expenses of any separate counsel for the Indemnified Persons shall
be reasonable, the Representatives and the Company agree that the
Company's obligations to pay such fees and expenses shall be
conditioned upon the following:
(1) in case separate counsel are retained by the
Indemnified Persons pursuant to clause (ii) of the
preceding paragraph, the identity of such counsel shall be
reasonably acceptable to the Company; and
(2) reimbursable fees and expenses of such
separate counsel shall be detailed and supported in a
manner reasonably acceptable to the Company (but nothing
herein shall be deemed to require the furnishing to the
Company of any information, including without limitation,
computer print-outs of lawyers' daily time entries, to the
extent that, in the judgment of such counsel, furnishing
such information might reasonably be expected to result in
a waiver of any attorney-client privilege); and
(3) the Company and the Representatives shall
cooperate in monitoring and controlling the fees and
expenses of separate counsel for Indemnified Persons for
which the Company is liable hereunder, and the
Representatives shall use every reasonable effort to cause
such separate counsel to minimize the duplication of
activities as between themselves and counsel to the
Company.
The Company shall not be liable for any settlement of any
litigation or proceeding effected without the written consent of
the Company, but if settled with such consent or if there be a
final judgment for the plaintiff, the Company agrees, subject to
the provisions of this Section 8, to indemnify the Indemnified
Person from and against any loss, damage, liability or expenses by
reason of such settlement or judgment. The Company shall not,
without the prior written consent of the Representatives, effect
any settlement of any pending or threatened litigation, proceeding
or claim in respect of which indemnity has been properly sought by
the Indemnified Persons hereunder, unless such settlement includes
an unconditional release by the claimant of all Indemnified
Persons from all liability with respect to claims which are the
subject matter of such litigation, proceeding or claim.
The Company's indemnity agreement contained in this
Section 8, and the covenants, warranties and representations of the
Company contained in this Agreement, shall remain in full force and effect
regardless of any investigation made by or on behalf of any person, and
shall survive the delivery of and payment for the Securities hereunder,
and the indemnity agreement contained in this Section 8 shall survive any
termination of this Agreement.
The liabilities of the Company in Section 8(a) are in
addition to any other liabilities of the Company under this Agreement or
otherwise.
(c) Each Underwriter agrees severally and not jointly, to
the extent permitted by law, to indemnify, hold harmless and
reimburse the Company, its directors and such of its officers as
shall have signed the Registration Statement, each other
Underwriter and each person, if any, who controls the Company or
any such other Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent and upon
the same terms as the indemnity agreement of the Company set forth
in Section 8(a) hereof, but only with respect to alleged untrue
statements or omissions made in the Registration Statement, or in
the Prospectus, as amended or supplemented (if applicable), in
reliance upon and in conformity with information furnished in
writing to the Company by, or through the Representatives on
behalf of, such Underwriter expressly for use therein.
The indemnity agreement on the part of each Underwriter
contained in Section 8(c) hereof, and the warranties and representations
of such Underwriter contained in this Agreement, shall remain in full
force and effect regardless of any investigation made by or on behalf of
the Company or other person, and shall survive the delivery of and payment
for the Securities hereunder, and the indemnity agreement contained in
this Section 8(c) shall survive any termination of this Agreement. The
liabilities of each Underwriter in Section 8(c) are in addition to any
other liabilities of such Underwriter under this Agreement or otherwise.
9. Contribution: If the indemnification provided for in Section
8 above is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the
Bonds. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of each indemnifying party, if any on
the one hand and the indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 9. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
Section 9 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim, provided that the
provisions of Section 8 have been complied with (in all material respects)
in respect of any separate counsel for such indemnified party.
Notwithstanding the provisions of this Section 9 no Underwriter shall be
required to contribute any amount greater than the excess of (i) the total
price at which the Securities underwritten by it and distributed to the
public were offered to the public over (ii) the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 9 to contribute are several in
proportion to their respective underwriting obligations and not joint.
The agreement with respect to contribution contained in
Section 9 hereof shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any Underwriter, and
shall survive delivery of and payment for the Securities hereunder and any
termination of this Agreement.
10. Substitution of Underwriters: If any Underwriter under this
agreement shall fail or refuse (otherwise than for some reason sufficient
to justify in accordance with the terms hereof, the termination of its
obligations hereunder) to purchase the Securities which it had agreed to
purchase, the Representatives shall immediately notify the Company and the
Representatives and the other Underwriters may, within 36 hours of the
giving of such notice, determine to purchase, or to procure one or more
other members of the National Association of Securities Dealers, Inc.
("NASD") (or, if not members of the NASD, who are foreign banks, dealers
or institutions not registered under the Securities Exchange Act and who
agree in making sales to comply with the NASD's Rules of Fair Practice),
satisfactory to the Company, to purchase, upon the terms herein set forth,
the number of shares of Securities which the defaulting Underwriter had
agreed to purchase. If any non-defaulting Underwriter or Underwriters
shall determine to exercise such right, the Representatives shall give
written notice to the Company of such determination within 36 hours after
the Company shall have received notice of any such default, and thereupon
the Time of Purchase shall be postponed for such period, not exceeding
three business days, as the Company shall determine. If in the event of
such a default, the Representatives shall fail to give such notice, or
shall within such 36-hour period give written notice to the Company that
no other Underwriter or Underwriters, or others, will exercise such right,
then this Agreement may be terminated by the Company, upon like notice
given to the Representatives within a further period of 36 hours. If in
such case the Company shall not elect to terminate this Agreement, it
shall have the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to
purchase and pay for the respective number of shares of which they
had severally agreed to purchase hereunder, as hereinabove
provided, and, in addition, the number of shares of Securities
which the defaulting Underwriter shall have so failed to purchase
up to a number of shares thereof equal to one-ninth (1/9) of the
respective number of shares of Securities which such
non-defaulting Underwriters have otherwise agreed to purchase
hereunder; and/or
(b) to procure one or more other members of the NASD (or,
if not members of the NASD, who are foreign banks, dealers or
institutions not registered under the Exchange Act and who agree
in making sales to comply with the NASD's Rules of Fair Practice),
to purchase, upon the terms herein set forth, the number of shares
of Securities which such defaulting Underwriter had agreed to
purchase, or that portion thereof which the remaining Underwriters
shall not be obligated to purchase pursuant to the foregoing
clause (a).
In the event the Company shall exercise its rights under
clause (a) and/or (b) above, the Company shall give written notice thereof
to the Representatives within such further period of 36 hours, and
thereupon the Time of Purchase shall be postponed for such period, not
exceeding three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect to exercise its
rights under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Agreement.
Any action taken by the Company under this Section 10
shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement. Termination by the
Company under this Section 10 shall be without any liability on the part
of the Company or any non-defaulting Underwriter, except as otherwise
provided in Section 5(i) hereof.
In the computation of any period of 36 hours referred to
in this Section 10, there shall be excluded a period of 24 hours in
respect of each Saturday, Sunday or legal holiday which would otherwise be
included in such period of time.
11. Termination of Agreement: This Agreement may be terminated
at any time prior to the Time of Purchase by the Representatives, if prior
to such time (i) trading in securities on the New York Stock Exchange
shall have been generally suspended by the Commission or the New York
Stock Exchange, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by federal or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or any other calamity or crisis, the effect of
which on the financial markets of the United States is such as to impair,
in the Representatives' reasonable judgment, after reasonable inquiries on
the part of the Representatives, the marketability of the Securities.
If the Representatives elect to terminate this Agreement,
as provided in this Section 11, the Representatives will promptly notify
the Company and each other Underwriter by telephone or telecopy, confirmed
by letter. If this Agreement shall not be carried out by any Underwriter
for any reason permitted hereunder, or if the sale of the Securities to
the Underwriters as herein contemplated shall not be carried out because
the Company is not able to comply with the terms hereof, the Company shall
not be under any obligation under this Agreement and shall not be liable
to any Underwriter or to any member of any selling group for the loss of
anticipated profits from the transactions contemplated by this Agreement
and the Underwriters shall be under no liability to the Company nor be
under any liability under this Agreement to one another.
Notwithstanding the foregoing, the provisions of Sections
5(g), 5(i), 8 and 9 shall survive any termination of this Agreement.
12. Notices: All notices hereunder shall, unless otherwise
expressly provided, be in writing and be delivered at or mailed to the
following addresses or be sent by telecopy as follows: if to the
Underwriters or the Representatives, to the Representatives at the address
or number, as appropriate, designated in Schedule I hereto, and, if to the
Company, to Consumers Power Company, Attention: Senior Vice President and
Chief Financial Officer, 212 West Michigan Avenue, Jackson, Michigan 49201
(Telecopy -517-788-0351).
13. Parties in Interest: The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company
(including the directors thereof and such of the officers thereof as shall
have signed the Registration Statement), and the controlling persons, if
any, referred to in Section 8 hereof, and their respective successors,
assigns, executors and administrators, and, except as expressly otherwise
provided in Section 10 hereof, no other person shall acquire or have any
right under or by virtue of this Agreement.
14. Definition of Certain Terms: The term "Underwriters", as
used herein, shall be deemed to mean the several persons, firms or
corporations, named in Schedule II hereto (including the Representatives
herein mentioned, if so named), and the term "Representatives", as used
herein, shall be deemed to mean the representative or representatives
designated by the Underwriters in Schedule I hereto. All obligations of
the Underwriters hereunder are several and not joint. If there shall be
only one person, firm or corporation named in Schedule I and Schedule II
hereto, the term "Underwriters" and the term "Representatives", as used
herein, shall mean such person, firm or corporation. If the firm or firms
listed in Schedule I hereto are the same as the firm or firms listed in
Schedule II hereto, then the terms "Underwriters" and "Representatives",
as used herein, shall each be deemed to refer to such firm or firms. The
term "successors" as used in this Agreement shall not include any
purchaser, as such purchaser, of any of the Securities from any of the
respective Underwriters.
15. Governing Law: This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
16. Counterparts: This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the acceptance
hereof by you, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Underwriters and the Company.
Very truly yours,
CONSUMERS POWER COMPANY
By:_____________________________
Accepted as of the date hereof
_____________________________________
As Representatives
By: _________________________________
By:__________________________________<PAGE>
<PAGE>
Schedule I
<PAGE>
<PAGE>
Schedule II
Underwriter Number of Firm
Shares to be Purchased
______________
Total ==============
<PAGE>
<PAGE>
Exhibit A
[Matters to be addressed by opinion of Denise M. Sturdy, Esq.]
<PAGE>
<PAGE>
Exhibit B
[Matters to be addressed by opinion of Reid & Priest]
<PAGE>
<PAGE>
EXHIBIT NO. (4)(b)
<PAGE>
EXHIBIT NO. (4)(b)
As Amended January 31, 1994
STATE OF MICHIGAN
MICHIGAN DEPARTMENT OF COMMERCE
CORPORATION DIVISION
LANSING, MICHIGAN
RESTATED ARTICLES OF INCORPORATION
(Profit Corporation)
These amended and Restated Articles of Incorporation are
executed pursuant to the provisions of Sections 641 through 651, Act 284,
Public Acts of 1972, as amended, and were duly adopted by the shareholders
of Consumers Power Company on April 28, 1989.
The present name of the corporation is Consumers Power
Company. The former name of the corporation was Consumers Power Company
of Michigan.
Consumers Power Company is the successor to a corporation of
the same name which was organized in Maine in 1910 and did business in
Michigan from 1915 to 1968.
The date of filing the original Articles of Incorporation in
Michigan was January 22, 1968.
RESTATED ARTICLES OF INCORPORATION
The following restated Articles of Incorporation supersede the
original Articles as amended and shall be the Articles of Incorporation of
the corporation.
ARTICLE I
The name of the corporation is CONSUMERS POWER COMPANY
(hereinafter called the "Company").
ARTICLE II
The purposes for which the Company is formed are as follows:
(a) To generate, manufacture, produce, gather, purchase,
store, transmit, distribute, transform, use, sell and supply electric
energy or gas, either artificial or natural, or both electric energy and
gas, to the public generally, and to public utilities, natural gas
companies and to any and all other entities (whether governmental, public
or private); and generally to carry on the electric business or the gas
business, or both businesses, as a public utility.
(b) To generate, manufacture, produce, purchase, transmit,
distribute, transform, use, sell and supply hot water, steam, heat, power
and energy, or any or all thereof, to the public generally, and to any and
all other entities (whether governmental, public or private); and
generally to carry on any or all of such businesses as a public utility.
(c) To acquire by lease, purchase, grant, donation, devise,
bequest or otherwise, all such lands, easements, royalties, leaseholds,
flowage rights, water power and other property, real, personal or mixed,
tangible or intangible, and any interest therein, wherever the same may be
located and whether within or without the State of Michigan, as may be
necessary, incidental or appropriate to the carrying out of any of its
purposes, and to hold, convey, mortgage or lease, with or without any of
its franchises, corporate or otherwise, any of the foregoing.
(d) To dam any stream or streams, lake or other body of
water, and excavate, construct, maintain, repair and improve any existing
stream, lake, reservoir, body of water, or canal, or which it may excavate
and construct, with water power appurtenant thereto; to flood, flow and
submerge land and property by any means whatsoever, including but not
limited to, the construction of the necessary dams or other facilities in
any canal, or in creeks, streams, reservoirs, lakes or other bodies of
water or watercourses, natural or artificial; to excavate, construct,
improve, maintain, repair, remove and replace reservoirs, dams, dikes and
other facilities; and to condemn all lands, easements, rights of way,
waterpowers, flowage rights, gas royalties, natural gas leaseholds,
royalty interests, and other property, and any and all interests therein,
to the extent authorized, and subject to the limitations imposed, by the
laws of the State of Michigan or of any other State applicable thereto.
(e) To explore for, mine, produce, gather, purchase, store,
transmit, distribute, refine, sell and supply natural gas, oil and other
hydrocarbons.
(f) To sell appliances and carry on an appliance business.
(g) To carry on any and all other businesses and perform any
and all other acts incident to or appropriate in connection with any of
the foregoing.
(h) To guarantee, subscribe for, purchase, invest in, own,
hold or otherwise acquire, sell, assign, transfer, mortgage, pledge or
otherwise dispose of, the shares of the capital stock of, or any bonds,
securities or evidences of indebtedness created by, or any other evidences
of interest in, any other corporation or corporations or other entity of
the District of Columbia or of the State of Michigan or any other State,
country, nation or government so far as permitted by the laws applicable
thereto, and while the owner thereof to exercise all the rights, powers
and privileges of ownership, including the right to vote thereon or with
respect thereto and to receive all dividends or payments thereon, so far
as permitted by the laws applicable thereto; to lend money to or aid in
any lawful manner whatsoever any corporation or other entity now existing
or hereafter formed whose shares of capital stock, bonds, securities or
evidences of indebtedness, or other evidences of interest therein, are
held or are in any manner guaranteed by the Company; and to do any and all
lawful acts and things to protect, preserve, improve or enhance the value
of any such shares of capital stock, bonds, securities, evidences of
indebtedness or other interests.
(i) To acquire, purchase, hold, sell and transfer shares of
its own capital stock, bonds and other evidences of indebtedness to the
extent and in the manner authorized by, and subject to any requirements
of, the laws applicable thereto.
(j) To borrow money and issue, sell or pledge bonds,
promissory notes, bills of exchange, debentures and other obligations and
evidences of indebtedness, whether secured by mortgage, pledge or
otherwise, or unsecured.
(k) To make contributions of money, property, services or
otherwise for public welfare, including, among other things, charitable,
scientific, educational and religious purposes.
(l) To conduct its business in the State of Michigan, other
States, the District of Columbia, the territories and colonies of the
United States and in foreign countries and the territories and colonies
thereof and to have one or more offices within or without the State of
Michigan.
(m) To have and to exercise all such powers as may be
conferred by the laws of the State of Michigan applicable to the Company
or to corporations engaged in the State of Michigan in any business which
may be carried on by the Company.
The foregoing clauses shall be construed both as purposes and
powers, but no recitation, expression or declaration of specific or
special purposes or powers hereinabove enumerated shall be deemed to be
exclusive, it being hereby expressly declared that all purposes and powers
not inconsistent therewith or with the laws of the State of Michigan
applicable to the Company are hereby included, and the Company shall
possess all such incidental and other powers as are reasonably necessary,
appropriate or convenient to the accomplishment of any of the foregoing
purposes or powers, either alone or in association with other
corporations, associations, firms, individuals or entities (whether
governmental, public or private), to the same extent and as fully as
individuals might or could do, as principals, agents, contractors or
otherwise.
ARTICLE III
The street and mailing address of the registered office is 212
West Michigan Avenue, Jackson, Michigan 49201.
The name of the resident agent at the registered office is
T. A. McNish.
ARTICLE IV
The total number of shares of all classes of stock which the
Company shall have authority to issue is 188,500,000: 23,500,000 shares
of preferred stock, 7,500,000 of which are of the par value of $100 per
share and are of a class designated Preferred Stock, and 16,000,000 shares
of which are of no par value and are of a class designated Class A
Preferred Stock; 40,000,000 shares are of the par value of $1 per share
and are of a class designated Preference Stock; and 125,000,000 shares are
of the par value of $10 per share and are of a class designated Common
Stock.
ARTICLE V
A director shall not be personally liable to the Company or
its shareholders for monetary damages for breach of duty as a director
except (i) for a breach of the director's duty of loyalty to the Company
or its shareholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) for a
violation of Section 551(1) of the Michigan Business Corporation Act, and
(iv) any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article V, and no modification
to its provisions by law, shall apply to, or have any effect upon, the
liability or alleged liability of any director of the Company for or with
respect to any acts or omissions of such director occurring prior to such
amendment, repeal or modification.
ARTICLE VI
Each director and each officer of the Company shall be
indemnified by the Company to the fullest extent permitted by law against
expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him or her
in connection with the defense of any proceeding in which he or she was or
is a party or is threatened to be made a party by reason of being or
having been a director or an officer of the Company. Such right of
indemnification is not exclusive of any other rights to which such
director or officer may be entitled under any now or hereafter existing
statute, any other provision of these Articles, bylaw, agreement, vote of
shareholders or otherwise. If the Business Corporation Act of the State
of Michigan is amended after approval by the shareholders of this Article
VI to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Company shall be eliminated or limited to the fullest extent permitted by
the Business Corporation Act of the State of Michigan, as so amended. Any
repeal or modification of this Article VI by the shareholders of the
Company shall not adversely affect any right or protection of a director
of the Company existing at the time of such repeal or modification.
ARTICLE VII
The statement of the designations and the voting and other
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of the Common Stock, of the Preference Stock, of the
Preferred Stock and of the Class A Preferred Stock is as follows:
PREFERRED STOCK
Preferred Stock Issuable in Series
The shares of Preferred Stock may be divided into and issued
in series. Each such series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes, and all
shares of the Preferred Stock shall be identical, except as to the
following relative rights and preferences, as to which there may be
variations between different series:
(a) The rate of dividend;
(b) The price at which shares may be redeemed, such price
to be not less than $100 or more than $115 per share,
plus accrued dividends to the date of redemption;
(c) The amount payable upon shares in event of involuntary
liquidation, which amount shall not be less than $100
per share or more than $115 per share, plus accrued
dividends;
(d) The amount payable upon shares in event of voluntary
liquidation, which amount shall not be less than $100
per share or more than $115 per share, plus accrued
dividends;
(e) The terms and conditions, if any, on which shares shall
be by their terms convertible into or exchangeable for
shares of any other class of stock of the Company over
which the Preferred Stock has preference as to payment
of dividends and as to assets;
(f) Subject to the rights and preferences of shares of
Preferred Stock set forth under the heading "General
Provisions", the terms and conditions of a sinking or
purchase fund, if any, for the redemption or purchase
of such shares.
No change shall be made in any of the rights and preferences
of any series of Preferred Stock at the time outstanding in those respects
in which the shares thereof vary from the shares of other series of
Preferred Stock at the time outstanding without the affirmative vote in
favor thereof of the holders of at least 66-2/3% of the shares of such
series of Preferred Stock at the time outstanding, in addition to such
other vote, if any, as may be required for such change under the
applicable provisions of these Articles or of the Michigan General
Corporation Act.
Series Established By Articles
There are hereby established eight series of Preferred Stock
designated, respectively, as $4.50 Preferred Stock, $4.52 Preferred Stock,
$4.16 Preferred Stock, $7.45 Preferred Stock, $7.72 Preferred Stock, $7.76
Preferred Stock, $7.68 Preferred Stock and $9.70 Preferred Stock.
$4.50 Preferred Stock
The rights and preferences of the shares of $4.50 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $4.50 per annum;
(b) The price at which shares may be redeemed is $110 per
share, plus accrued dividends to the date of
redemption;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$105 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit
of any sinking or purchase fund.
$4.52 Preferred Stock
The rights and preferences of the shares of $4.52 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $4.52 per annum;
(b) The price at which shares may be redeemed is $104.725
per share, plus accrued dividends to the date of
redemption;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$102.725 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are entitled to the benefit of the following
provisions for a purchase fund.
So long as any shares of the $4.52 Preferred Stock are
outstanding, the Company, as a purchase fund for the benefit of the shares
of $4.52 Preferred Stock, will endeavor to purchase, annually commencing
with the calendar year following that in which shares of such $4.52
Preferred Stock are originally issued, on a National securities exchange
(if listed thereon) or in the open market (if not so listed) at prices not
exceeding, as to any shares so purchased, $102.725 per share plus accrued
dividends to the date of purchase, the greater of 2% of the maximum number
of shares of $4.52 Preferred Stock at any one time issued and outstanding
or 4,000 such shares; provided, however, that the Company shall not be
obligated to expend for such purposes during any calendar year an amount
which would exceed the net income of the Company after dividends on the
Preferred Stock of all series for a period of twelve consecutive calendar
months within the fourteen consecutive calendar months ending on October
31 of such year. To the extent that such purchases with respect to any
calendar year are not effected prior to November 5 of such year, the
Company shall, by notice published once in each of two consecutive
calendar weeks (on any day of each such week) in one daily newspaper
printed in the English language and of general circulation in the Borough
of Manhattan, The City of New York and in one daily newspaper printed in
the English language and of general circulation in the City of Detroit,
Michigan (the first publication in each city to be on or prior to November
15 of such year), invite tenders from all holders of $4.52 Preferred Stock
to sell to the Company shares of $4.52 Preferred Stock at $102.725 per
share plus accrued dividends to the date of purchase. The invitation for
tenders shall set forth the method of making tenders and shall specify the
number of shares of $4.52 Preferred Stock as to which tenders are being
invited, the date on or prior to which tenders must be received (which
date shall be not less than 21 nor more than 28 days after the date on
which such invitation is first published) and the date of purchase by the
Company of and payment for shares tendered (which date shall be not more
than seven days after the date on or prior to which tenders must be
received). Should there be two or more tenders aggregating more than the
number of shares specified in the invitation for tenders, the shares to be
purchased by the Company shall be selected by lot in such manner as the
Company may determine. All tenders shall be subject to acceptance as a
whole or in part. Any determination made by the Company in the acceptance
of tenders shall be conclusive. If in any calendar year the Company is
obligated to invite tenders pursuant to the foregoing provisions, no
shares of Preferred Stock of any series shall be purchased by the Company
on or after November 5 of such year, other than shares of $4.52 Preferred
Stock tendered pursuant to such invitation, except in connection with a
program for the refunding of all or any part of such shares.
All shares purchased by the Company pursuant to the foregoing
provisions shall be held by the Company as treasury stock and appropriate
proceedings shall be taken at or prior to the next annual meeting of
shareholders to give such shares the status of authorized and unissued
shares and to reduce the Company's capital by an amount equal to the
amount of capital represented by the shares so purchased, whereupon such
shares shall be cancelled and retired and shall thereafter have the status
of authorized but unissued shares of Preferred Stock, undesignated as to
series, which may be reissued.
Notwithstanding the foregoing provisions, the Company shall
not purchase any shares of $4.52 Preferred Stock pursuant to the foregoing
provisions or invite tenders therefor, nor shall the Company be under any
obligation by virtue of the foregoing provisions to purchase any shares of
$4.52 Preferred Stock or to invite tenders therefor, in any period during
which the Company shall be in default for any past dividend period upon
the Preferred Stock of any series then outstanding or upon any other stock
of the Company over which the Preferred Stock does not have preference as
to the payment of dividends or if the purchase of such shares would be
unlawful under any applicable provisions of the Michigan General
Corporation Act. If the Company shall have duly performed its obligations
under the foregoing provisions during any calendar year, the fact that it
shall not have purchased the maximum number of shares of $4.52 Preferred
Stock which it is obligated to endeavor to purchase shall not increase the
number of shares which it is obligated to endeavor to purchase during any
subsequent calendar year.
In the event that the Company shall at any time be in default
in the performance of its obligations under the foregoing provisions, no
dividends (other than dividends payable in Common Stock) shall be paid or
any other distribution of assets made, by purchase of shares or otherwise,
on Common Stock or on any other stock of the Company over which the
Preferred Stock has preference as to the payment of dividends or as to
assets.
For the purpose of the foregoing provisions, the term "net
income of the Company after dividends on the Preferred Stock of all
series" shall mean the balance remaining after deducting from the total
gross revenues of the Company from all sources: (i) all operating expenses
and taxes, including charges to income for general taxes and for federal
and state taxes measured by income, for retirement and depreciation
reserve and for amortization or other disposition of amounts, if any,
classified as amounts in excess of original cost of utility plant, (ii)
the amount, if any, by which the aggregate of the charges to income during
the period in question for repairs, maintenance and provision for
depreciation is less than the maintenance and replacement requirement
embodied in the Indenture of Consumers Power Company (of Maine) to City
Bank Farmers Trust Company, as Trustee, dated as of September 1, 1945, as
amended (hereinafter called the "Indenture"), or any indenture
supplemental thereto, succeeding the same or in substitution therefore,
(iii) all interest charges and other income deductions, including charges
to income for the amortization of debt discount, premium and expense and
of Preferred Stock premium and expense, and (iv) all dividends applicable
to the period in question on the Preferred Stock and on all other stock
over which the Preferred Stock does not have preference as to the payment
of dividends.
$4.16 Preferred Stock
The rights and preferences of the shares of $4.16 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $4.16 per annum;
(b) The price at which shares may be redeemed is $103.25
per share, plus accrued dividends to the date of
redemption;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$101 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit
of any sinking or purchase fund.
$7.45 Preferred Stock
The rights and preferences of the shares of $7.45 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.45 per annum;
(b) The price at which shares may be redeemed is $108 per
share if redeemed prior to April 1, 1978; $106 per
share if redeemed thereafter and prior to April 1,
1981; $103 per share if redeemed thereafter and prior
to April 1, 1986; and at $101 per share thereafter,
plus, in each case, accrued dividends to the date of
redemption; provided, however, that prior to April 1,
1978 none of the shares may be redeemed if such
redemption is a part of or in anticipation of any
refunding operation involving the application, directly
or indirectly, of borrowed funds or the proceeds of an
issue of any stock ranking prior to or on a parity with
the $7.45 Preferred Stock if such borrowed funds have
an interest rate or cost to the Company (computed in
accordance with generally accepted financial practice),
or such stock has a dividend rate or cost to the
Company (so computed), less than $7.45 per annum;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$100 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit
of any sinking or purchase fund.
$7.72 Preferred Stock
The rights and preferences of the shares of $7.72 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.72 per annum;
(b) The price at which shares may be redeemed is $108 per
share if redeemed prior to July 1, 1977; $106 per share
if redeemed thereafter and prior to July 1, 1982; $103
per share if redeemed thereafter and prior to July 1,
1987; and at $101 per share thereafter, plus, in each
case, accrued dividends to the date of redemption;
provided, however, that prior to July 1, 1977 none of
the shares may be redeemed if such redemption is a part
of or in anticipation of any refunding operation
involving the application, directly or indirectly, of
borrowed funds or the proceeds of an issue of any stock
ranking prior to or on a parity with the $7.72
Preferred Stock if such borrowed funds have an interest
rate or cost to the Company (computed in accordance
with generally accepted financial practice), or such
stock has a dividend rate or cost to the Company (so
computed), less than 7.72% per annum;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$100 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit
of any sinking or purchase fund.
$7.76 Preferred Stock
The rights and preferences of the shares of $7.76 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.76 per annum;
(b) The price at which shares may be redeemed is $109.19
per share if redeemed prior to June 1, 1978; $107.25
per share if redeemed thereafter and prior to June 1,
1983; $105.31 per share if redeemed thereafter and
prior to June 1, 1988; and at $102.21 per share
thereafter, plus, in each case, accrued dividends to
the date of redemption; provided, however, that prior
to June 1, 1978 none of the shares may be redeemed if
such redemption is for the purpose or in anticipation
of refunding such share through the use, directly or
indirectly, of funds borrowed by the Company, or
through the use, directly or indirectly, of funds
derived through the issuance by the Company of stock
ranking prior to or on a parity with the $7.76
Preferred Stock as to dividends or assets, if such
borrowed funds have an effective interest cost to the
Company (computed in accordance with generally accepted
financial practice) or such stock has an effective
dividend cost to the Company (so computed) of less than
7.7439% per annum;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in the event of voluntary
liquidation is $101.43 per share, plus accrued
dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit
of any sinking or purchase fund.
$7.68 Preferred Stock
The rights and preferences of the shares of $7.68 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.68 per annum;
(b) The price at which shares may be redeemed is $108 per
share if redeemed prior to November 1, 1978; $106 per
share if redeemed thereafter and prior to November 1,
1983; $103 per share if redeemed thereafter and prior
to November 1, 1988; and at $101 per share thereafter,
plus, in each case, accrued dividends to the date of
redemption; provided, however, that prior to November
1, 1978 none of the shares may be redeemed if such
redemption is for the purpose or in anticipation of
refunding such share through the use, directly or
indirectly, of funds borrowed by the Company, or
through the use, directly or indirectly, of funds
derived through the issuance by the Company of stock
ranking prior to or on a parity with the $7.68
Preferred Stock as to dividends or assets, if such
borrowed funds have an effective interest cost to the
Company (computed in accordance with generally accepted
financial practice) or such stock has an effective
dividend cost to the Company (so computed), of less
than 7.68% per annum;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$100 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit
of any sinking or purchase fund.
$9.70 Preferred Stock
The rights and preferences of the shares of $9.70 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $9.70 per annum;
(b) The price at which shares may be redeemed is $110 per
share if redeemed prior to January 1, 1985; $107 per
share if redeemed thereafter and prior to January 1,
1990; $104 per share if redeemed thereafter and prior
to January 1, 1995; and $101 per share thereafter,
except $100 per share if redeemed at any time for the
sinking fund, plus, in each case, accrued dividends to
the date of redemption; provided, however, that prior
to January 1, 1990 none of the shares may be redeemed
if such redemption is for the purpose or in
anticipation of refunding any such share through the
use, directly or indirectly, of funds borrowed by the
Company or any subsidiary of the Company, or through
the use, directly or indirectly, of funds derived
through the issuance by the Company of stock ranking
prior to or on a parity with the $9.70 Preferred Stock
as to dividends or assets, if such borrowed funds have
an interest rate or an effective interest cost to the
Company or any subsidiary of the Company (computed in
accordance with generally accepted financial practice)
or such stock has a dividend rate or an effective
dividend cost to the Company (so computed) of less than
9.70% per annum or in any case through the use,
directly or indirectly, of funds derived through the
issuance by the Company of stock ranking junior to the
$9.70 Preferred Stock as to dividends or assets or
through the issuance by any subsidiary of the Company
of any stock;
(c) The amount payable in event of involuntary liquidation
is $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$100 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable; and
(f) The holders of shares of this series shall be entitled
to the benefit of a sinking fund as follows:
On January 1, 1986 and on each January 1 thereafter the
Company shall redeem out of funds legally available
therefor 5,000 shares of this series (or the number of
shares then outstanding if less than 5,000) at a
sinking fund redemption price equal to $100 per share
plus accrued dividends to the date of redemption.
Whenever on any such January 1 funds legally available
therefor are insufficient to permit the Company to
redeem the full number of shares so required to be
redeemed on such date, the Company shall apply to such
redemption the proportion of such legally available
funds which bears the same ratio to the amount required
for the redemption of the full number of shares as the
total amount of such legally available funds bears to
the total amount required for the purchase or
redemption of shares of all series of Preferred Stock
and of other classes of stock of the Company ranking on
a parity with the Preferred Stock with respect to the
payment of dividends and distribution of assets which
the Company is then obligated to redeem or purchase.
For the purpose of the foregoing provisions, the term
"funds legally available therefor" on any January 1
shall mean the surplus of the Company on such January 1
but not exceeding the net income of the Company
(determined in accordance with generally accepted
accounting principles) for the period of twelve
consecutive calendar months ending on the September 30
next preceding such January 1 after deducting therefrom
dividends on the Preferred Stock of all series. The
Company shall have the option, which shall be non-
cumulative, to redeem on January 1, 1986 and on each
January 1 thereafter not more than an additional 5,000
shares of this series at such sinking fund redemption
price provided, however, that an aggregate of no more
than 35,000 shares of this series may be redeemed
pursuant to this option. All shares redeemed by the
Company pursuant to the foregoing provisions shall be
cancelled. Any shares of this series so redeemed and
cancelled shall have the status of authorized but
unissued shares of Preferred Stock and may be reissued
as shares of Preferred Stock, but none of such shall be
reissued as shares of this series, and no shares of
this series, in addition to the 100,000 shares of this
series initially proposed to be issued, shall be
issued, as shares of this series.
In the event that the Company shall at any time be in
default in the performance of its obligations under the
foregoing provisions of this subdivision (f), no
dividends (other than dividends payable in Common
Stock) shall be paid or any other distribution of
assets made, by purchase of shares or otherwise, on
Common Stock or on any other stock of the Company over
which the Preferred Stock has preference as to the
payment of dividends or as to assets; and
(g) In the event that a dividend shall be declared and set
apart for payment or paid on the $9.70 Preferred Stock
for any dividend period which is less than the accrued
dividend on the $9.70 Preferred Stock for such dividend
period, the Company shall not declare and set apart for
payment or pay any dividend on any other series of
Preferred Stock for such dividend period if the ratio
of such dividend on such other series to the accrued
dividend on such other series for such dividend period
shall exceed the ratio of such dividend declared and
set apart for payment and paid on the $9.70 Preferred
Stock for such dividend period to the accrued dividend
on the $9.70 Preferred Stock for such dividend period.
As used in this subdivision (g), "dividend period"
shall have the meaning specified in section (A) of the
General Provisions applicable to all shares of
Preferred Stock set forth in the Articles of
Incorporation.
Authority of Board of Directors as to Other Series
To the extent that series of Preferred Stock have not been
established and variations in the relative rights and preferences as
between series have not been fixed and determined as hereinbefore set
forth in these Articles, authority is vested in the Board of Directors of
the Company to divide the shares of Preferred Stock into and to establish
series of Preferred Stock, to fix and determine within the limitations
hereinabove set forth in these Articles the relative rights and
preferences of the shares of any series so established, to issue and sell
any and all of the authorized and unissued shares of Preferred Stock as
shares of any series thereof established by these Articles or by action of
the Board of Directors pursuant hereto, and to create a sinking or
purchase fund for the redemption or purchase of shares of any series
without the necessity of providing a sinking or purchase fund for any
other series, and in the event that the Company shall acquire, by purchase
or redemption or otherwise, any issued shares of its Preferred Stock of
any series, the Board of Directors may resell or convert and sell or
otherwise dispose of, in their discretion, any shares so acquired as
shares of the same series or of any other duly created series of Preferred
Stock.
CLASS A PREFERRED STOCK
Class A Preferred Stock Issuable in Series
The shares of Class A Preferred Stock may be divided into and
issued in series. Each such series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes, and all shares of the Class A Preferred Stock shall be identical,
except as to the following relative rights and preferences, as to which
there may be variations between different series:
(a) The rate of dividend;
(b) The price at which shares may be redeemed;
(c) The amount payable upon shares in event of involuntary
liquidation;
(d) The amount payable upon shares in event of voluntary
liquidation;
(e) The voting rights of the holders of such series, if
any; provided that such holders of all series shall
have the voting rights hereinafter specified in these
Articles;
(f) The terms and conditions, if any, on which shares shall
be by their terms convertible into or exchangeable for
any other securities; and
(g) The terms and conditions of a sinking or purchase fund,
if any, for the redemption or purchase of such shares.
No change shall be made in any of the rights and preferences
of any series of Class A Preferred Stock at the time outstanding in those
respects in which the shares thereof vary from the shares of other series
of Class A Preferred Stock at the time outstanding without the affirmative
vote in favor thereof of the holders of at least 66-2/3% of the shares of
such series of Class A Preferred Stock at the time outstanding, in
addition to such other vote, if any, as may be required for such change
under the applicable provisions of these Articles or of the Michigan
Business Corporation Act.
Authority of Board of Directors As to Other Series
To the extent that series of Class A Preferred Stock have not
been established and variations in the relative rights and preferences as
between series have not been fixed and determined as hereinbefore set
forth in these Articles, authority is vested in the Board of Directors of
the Company to divide the shares of Class A Preferred Stock into and to
establish series of Class A Preferred Stock, to fix and determine the
relative rights and preferences of the shares of any series so
established, to issue and sell any and all of the authorized and unissued
shares of Class A Preferred Stock as shares of any series thereof
established by these Articles or by action of the Board of Directors
pursuant hereto, and to create a sinking or purchase fund for the
redemption or purchase of shares of any series without the necessity of
providing a sinking or purchase fund for any other series, and in the
event that the Company shall acquire, by purchase or redemption or
otherwise, any issued shares of its Class A Preferred Stock of any series,
the Board of Directors may resell or convert and sell or otherwise dispose
of, in their discretion, any shares so acquired as shares of the same
series or of any other duly created series of Class A Preferred Stock.
PREFERRED STOCK AND CLASS A PREFERRED STOCK
General Provisions
In these General Provisions, the Company's Preferred Stock,
par value $100 per share, is referred to as the "Preferred Stock"; the
Company's Class A Preferred Stock is referred to as the "Class A Preferred
Stock"; and the Preferred Stock and Class A Preferred Stock are together
referred to as the "Company Preferred Stock".
(A) The holders of the Company Preferred Stock of each
series shall be entitled to receive dividends, payable when and as
declared by the Board of Directors, at such rates as shall be determined
for the respective series thereof from the first day of the current
dividend period within which such stock shall have been originally issued
except that, as to any share of Preferred Stock originally issued
subsequent to December 31, 1972, from the date upon which such share shall
have been originally issued, before any dividends shall be declared or
paid upon or set apart for the Common Stock or any other stock of the
Company not having preference over the Company Preferred Stock as to
payment of dividends. Such dividends shall be cumulative so that if for
any dividend period or periods dividends shall not have been paid or
declared and set apart for payment upon all outstanding Company Preferred
Stock at the rates determined for the respective series, the deficiency
shall be fully paid, or declared and set apart for payment, before any
dividends shall be declared or paid upon the Common Stock or any other
stock of the Company not having preference over the Company Preferred
Stock as to payment of dividends. Dividends shall not be declared and set
apart for payment, or paid, on the Company Preferred Stock of any one
series, for any dividend period, unless dividends have been or are
contemporaneously declared and set apart for payment or paid on all series
of the Company Preferred Stock for all dividend periods terminating on the
same or an earlier date. As to all series of the Company Preferred Stock,
the term "dividend period" shall mean any of the four calendar quarters in
each year commencing, respectively, the first day of January, April, July
and October and the first days of each such calendar quarter shall be the
dividend payment dates for the regular quarterly dividends payable for the
preceding dividend period on such series.
(B) When full cumulative dividends as aforesaid upon all
series of the Company Preferred Stock then outstanding for all past
dividend periods and for the current dividend periods shall have been paid
or declared and set apart for payment, the Board of Directors may declare
dividends on the Common Stock or any other stock over which the Company
Preferred Stock has a preference as to payment of dividends, and no
holders of any series of the Company Preferred Stock as such shall be
entitled to share therein; provided, however, that no dividends (other
than dividends paid in or presently thereafter repaid to the Company for
or as a capital contribution with respect to stock over which the Company
Preferred Stock has preference as to payment of dividends and as to
assets) shall be paid or any other distribution of assets made, by
purchase of shares or otherwise, on Common Stock or on any other stock
over which the Company Preferred Stock has preference as to payment of
dividends or as to assets except out of earned surplus of the Company
available for distribution to stock over which the Company Preferred Stock
has preference as to payment of dividends and as to assets, or if, at the
time of declaration thereof or the making of such distribution there shall
not remain to the credit of earned surplus account (after deducting
therefrom the amount of such dividends and distribution), an amount at
least equal to (i) $7.50 per share on all then outstanding shares of the
Preferred Stock, (ii) in respect to the Class A Preferred Stock 7.5% of
the aggregate amount established by the Board of Directors to be payable
on the shares of each series thereof in the event of involuntary
liquidation of the Company, and (iii) $7.50 per share on all then
outstanding shares of all other stock over which the Company Preferred
Stock does not have preference as to the payment of dividends and as to
assets.
So long as any shares of the Company Preferred Stock are
outstanding, the payment of dividends on the Common Stock (other than
dividends payable in Common Stock) and the making of any distribution of
assets to holders of Common Stock by purchase of shares or otherwise (each
of such actions being herein embraced within the term "payment of Common
Stock dividends") shall be subject to the following limitations (except as
such payments may be approved or permitted by subsequent order of the
Securities and Exchange Commission or any successor thereto or any other
Federal governmental agency having the same or similar jurisdiction, or,
in the event that the Company ceases to be subject to the jurisdiction of
said Commission or of any successor thereto or of any such other Federal
governmental agency, except as such payments may be permitted in
accordance with a waiver of such limitations which shall have been
approved by the affirmative vote in favor thereof of the holders of at
least 66-2/3% of the shares of Preferred Stock and Class A Preferred Stock
(voting as separate classes) at the time outstanding):
(a) If and so long as the ratio of the aggregate of the par
value of, or stated capital represented by, the
outstanding shares of Common Stock (including premiums
on the Common Stock but excluding premiums on the
Company Preferred Stock) and of the surplus of the
Company to the total capitalization and surplus of the
Company at the end of a period of twelve consecutive
calendar months within the fourteen calendar months
immediately preceding the calendar month in which the
proposed payment of Common Stock dividends is to be
made (which period is hereinafter referred to as the
"base period"), adjusted to reflect the proposed
payment of Common Stock dividends (which ratio is
hereinafter referred to as the "capitalization ratio"),
is less than 20%, the payment of Common Stock
dividends, including the proposed payment, during the
twelve calendar months period ending with and including
the calendar month in which the proposed payment is to
be made shall not exceed 50% of the net income of the
Company available for the payment of dividends on the
Common Stock during the base period;
(b) If and so long as the capitalization ratio is 20% or
more but less than 25%, the payment of Common Stock
dividends, including the proposed payment, during the
twelve calendar months period ending with and including
the calendar month in which the proposed payment is to
be made shall not exceed 75% of the net income of the
Company available for the payment of dividends on the
Common Stock during the base period;
(c) Except to the extent permitted under paragraphs (a) and
(b) above, the Company shall not make any payment of
Common Stock dividends which would reduce the
capitalization ratio to less than 25%.
For the purpose of the foregoing provisions, the following
terms shall have the following meanings:
(1) The term "net income of the Company available for the
payment of dividends on the Common Stock" shall mean
for any base period the balance remaining after
deducting from the total gross revenues of the Company
from all sources during such period the following:
(a) All operating expenses and taxes, including
charges to income for general taxes and for
federal and state taxes measured by income, for
retirement or depreciation reserve and for
amortization or other disposition of amounts, if
any, classified as amounts in excess of original
cost of utility plant; (b) the amount, if any,
by which the aggregate of the charges to income
during the period in question for repairs,
maintenance and provision for depreciation is
less than the maintenance and replacement
requirement embodied in the Indenture, or any
indenture supplemental thereto, succeeding the
same or in substitution therefor; (c) all
interest charges and other income deductions,
including charges to income for amortization of
debt discount, premium and expense and of the
Company Preferred Stock premium and expense; and
(d) all dividends applicable to the period in
question on stock having preference over the
Common Stock as to the payment of dividends.
(2) The term "total capitalization" shall mean the
aggregate of the principal amount of all outstanding
indebtedness of the Company maturing more than twelve
months after the date of determination of total
capitalization, plus the par value of, or stated
capital represented by, the outstanding shares of all
classes of stock of the Company, including any premiums
on capital stock.
(3) The term "surplus" shall include capital surplus,
earned surplus and any other surplus of the Company,
adjusted to eliminate any amounts which may then be
classified by the Company on its books as amounts in
excess of the original cost of utility plant and which
are not provided for by reserve and any items set forth
on the asset side of the balance sheet of the Company
as a result of accounting convention, such as
unamortized debt discount and expense and the Company
Preferred Stock expense, unless any such amount or
item, as the case may be, is being amortized or is
being provided for by reserve.
(C) Upon any dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, the holders of the Company
Preferred Stock of each series, without any preference of the shares of
any series of the Company Preferred Stock over the shares of any other
series of the Company Preferred Stock, shall be entitled to receive out of
the assets of the Company, whether capital, surplus or other, before any
distribution of the assets to be distributed shall be made to the holders
of Common Stock or of any other stock not having preference as to assets
over the Company Preferred Stock, the amount determined to be payable on
the shares of such series in the event of voluntary or involuntary
liquidation, as the case may be. In case the assets shall not be
sufficient to pay in full the amounts determined to be payable on all the
shares of the Company Preferred Stock in the event of voluntary or
involuntary liquidation, as the case may be, then the assets available for
such payment shall be distributed to the extent available as follows:
first, to the payment, pro rata, of $100 per share on each share of
Preferred Stock outstanding irrespective of series and the amount
established by the Board of Directors to be payable on each outstanding
share of each series of Class A Preferred Stock in the event of
involuntary liquidation; second, to the payment of the accrued dividends
on such shares, such payment to be made pro rata in accordance with the
amount of accrued dividends on each such share; and, third, to the payment
of any amounts in excess of $100 per share of the Preferred Stock
outstanding and the difference between the amount established by the Board
of Directors to be payable on the outstanding shares of each series of
Class A Preferred Stock in the event of voluntary liquidation and the
amount similarly determined to be payable on such shares in the event of
involuntary liquidation, plus accrued dividends which shall have been
determined to be payable on the shares of any series in the event of
voluntary or involuntary liquidation, as the case may be, such payment
also to be made pro rata in accordance with the amounts, if any, so
payable on each such share. After payment to the holders of the Company
Preferred Stock of the full preferential amounts hereinbefore provided
for, the holders of the Company Preferred Stock as such shall have no
right or claim to any of the remaining assets of the Company, either upon
any distribution of such assets or upon dissolution, liquidation or
winding up, and the remaining assets to be distributed, if any, upon a
distribution of such assets or upon dissolution, liquidation or winding
up, may be distributed among the holders of the Common Stock or of any
other stock over which the Company Preferred Stock has preference as to
assets. Without limiting the right of the Company to distribute its
assets or to dissolve, liquidate or wind up in connection with any sale,
merger, or consolidation, the sale of all the property of the Company to,
or the merger or consolidation of the Company into or with any other
corporation shall not be deemed to be a distribution of assets or a
dissolution, liquidation or winding up for the purposes of this paragraph.
(D) At the option of the Board of Directors of the Company,
the Company may redeem any series of the Company Preferred Stock
determined to be redeemable, or any part of any series, at any time at the
redemption price determined for such series; provided, however, that not
less than thirty nor more than sixty days previous to the date fixed for
redemption a notice of the time and place thereof shall be given to the
holders of record of the Company Preferred Stock so to be redeemed, by
mail or publication, in such manner as may be prescribed by the By-laws of
the Company or by resolution of the Board of Directors; and, provided,
further, that in every case of redemption of less than all of the
outstanding shares of any one series of the Company Preferred Stock, the
shares of such series to be redeemed shall be chosen by lot in such manner
as may be prescribed by resolution of the Board of Directors. At any time
after notice of redemption has been given in the manner prescribed by the
By-laws of the Company or by resolution of the Board of Directors to the
holders of stock so to be redeemed, the Company may deposit, or may cause
its nominee to deposit, the aggregate redemption price with some bank or
trust company named in such notice, payable on the date fixed for
redemption as aforesaid and in the amounts aforesaid to the respective
orders of the holders of the shares so to be redeemed, on endorsement to
the Company or its nominee, or otherwise, as may be required, and upon
surrender of the certificates for such shares. Upon the deposit of said
money as aforesaid, or, if no such deposit is made, upon said redemption
date (unless the Company defaults in making payment of the redemption
price as set forth in such notice), such holders shall cease to be
shareholders with respect to said shares, and from and after the making of
said deposit, or, if no such deposit is made, after the redemption date
(the Company not having defaulted in making payment of the redemption
price as set forth in such notice), the said holders shall have no
interest in or claim against the Company, or its nominee, with respect to
said shares, but shall be entitled only to receive said moneys on the date
fixed for redemption as aforesaid from said bank or trust company, or if
no such deposit is made, from the Company, without interest thereon, upon
endorsement, if required, and surrender of the certificates as aforesaid.
If such deposit shall be made by a nominee of the Company as
aforesaid, such nominee shall upon such deposit become the owner of the
shares with respect to which such deposit was made and certificates of
stock may be issued to such nominee in evidence of such ownership.
In case the holder of any such Company Preferred Stock shall
not, within six years after said deposit, claim the amount deposited as
above stated for the redemption thereof, the Depositary shall upon demand
pay over to the Company such amounts so deposited and the Depositary shall
thereupon be relieved from all responsibility to the holder thereof.
Nothing herein contained shall limit any legal right of the
Company to purchase any shares of the Company Preferred Stock.
(E) So long as any shares of the Preferred Stock are
outstanding, the Company shall not, without the affirmative vote in favor
thereof of the holders of at least 66-2/3% of the shares of the Preferred
Stock (voting together as a single class) at the time outstanding, adopt
an amendment to these Articles if such amendment would either (i)
authorize or create any class of stock preferred as to dividends or assets
over the Preferred Stock or (ii) change any of the rights and preferences
of the then outstanding Preferred Stock; provided, however, that nothing
in this paragraph contained shall authorize the adoption of any amendment
of these Articles by the vote of the holders of a less number of shares of
the Preferred Stock, or of any other class of stock, or of all classes of
stock, than is required for such amendment by the laws of the State of
Michigan at the time applicable thereto.
(F) So long as any shares of Class A Preferred Stock are
outstanding, the Company shall not, without the affirmative vote in favor
thereof of the holders of at least 66-2/3% of the shares of Class A
Preferred Stock at the time outstanding (voting together as a single
class) adopt an amendment to these Articles if such amendment would either
(i) authorize or create any class of stock preferred as to dividends or
assets over the Class A Preferred Stock or (ii) change any of the rights
and preferences of the then outstanding Class A Preferred Stock; provided,
however, that nothing in this paragraph contained shall authorize the
adoption of any amendment of these Articles by the vote of the holders of
a lesser number of shares of Class A Preferred Stock, or of any other
class of stock, or of all classes of stock, than is required for such
amendment by the laws of the State of Michigan at the time applicable
thereto.
(G) So long as any shares of the Company Preferred Stock
are outstanding, the Company shall not, without the affirmative vote in
favor thereof of the holders of at least 66-2/3% of the shares of the
Preferred Stock and Class A Preferred Stock (voting as separate classes)
at the time outstanding,
(a) issue, sell or otherwise dispose of any shares of
the Company Preferred Stock or issue, sell or otherwise
dispose of any stock over which the Company Preferred Stock
does not have preference as to the payment of dividends and as
to assets, unless, in any such case, (i) the net income of the
Company available for the payment of dividends for a period of
twelve consecutive calendar months within the fifteen calendar
months immediately preceding the issuance, sale or disposition
of such stock (including, in any case in which such stock is
to be issued, sold or otherwise disposed of in connection with
the acquisition of new property, the net income of the
property to be so acquired, computed on the same basis as the
net income of the Company available for the payment of
dividends) is at least equal to two times the annual dividend
requirements on all outstanding shares of the Company
Preferred Stock and of all stock over which the Company
Preferred Stock does not have preference as to the payment of
dividends and as to assets, including the shares proposed to
be issued, and (ii) the gross income of the Company available
for the payment of interest for a period of twelve consecutive
calendar months within the fifteen calendar months immediately
preceding the issuance, sale or disposition of such stock
(including, in any case in which such stock is to be issued,
sold or otherwise disposed of in connection with the
acquisition of new property, the gross income of the property
to be so acquired, computed on the same basis as the gross
income of the Company available for the payment of interest)
is at least equal to one and one-half times the aggregate of
the annual interest requirements (adjusted by provision for
amortization of debt discount and expense or of premium on
debt, as the case may be) on all outstanding indebtedness of
the Company and the annual dividend requirements (adjusted by
provision for amortization of the Company Preferred Stock
premium and expense) on all outstanding shares of the Company
Preferred Stock and of all stock over which the Company
Preferred Stock does not have preference as to the payment of
dividends and as to assets, including the shares proposed to
be issued; or
(b) issue, sell or otherwise dispose of any shares of
the Company Preferred Stock or issue, sell or otherwise
dispose of any stock over which the Company Preferred Stock
does not have preference as to the payment of dividends and as
to assets, unless, in any such case, the aggregate of the par
value of, or stated capital represented by, the outstanding
shares of Common Stock and of the surplus of the Company
(paid-in, earned and other, if any) shall be not less than the
aggregate amount payable in the event of involuntary
liquidation upon all outstanding shares of the Company
Preferred Stock and of all stock over which the Company
Preferred Stock does not have preference as to the payment of
dividends and as to assets, including the shares proposed to
be issued, provided that no portion of the surplus of the
Company utilized to satisfy the foregoing requirement shall be
available for dividends or other distributions of assets, by
purchase of shares or otherwise, on Common Stock or on any
other stock over which the Company Preferred Stock has
preference as to the payment of dividends and as to assets
until shares of the Company Preferred Stock or of stock over
which the Company Preferred Stock does not have preference as
to the payment of dividends and as to assets are retired and
then only to the extent of the amount payable in the event of
involuntary liquidation upon such shares or until and then
only to the extent that the par value of, or stated capital
represented by, the outstanding shares of Common Stock shall
have been increased.
For the purpose of the foregoing provisions, the following
terms shall have the following meanings:
(1) The term "net income of the Company available for the
payment of dividends" shall mean the balance remaining
after deducting from the total gross revenues of the
Company from all sources the following: (a) all
operating expenses and taxes, including charges to
income for general taxes and for federal and state
taxes measured by income, for retirement or
depreciation reserve and for amortization or other
disposition of amounts, if any, classified as amounts
in excess of original cost of utility plant, (b) the
amount, if any, by which the aggregate of the charges
to income during the period in question for repairs,
maintenance and provision for depreciation is less than
the maintenance and replacement requirement embodied in
the Indenture, or any indenture supplemental thereto,
succeeding the same or in substitution therefor, and
(c) all interest charges and other income deductions,
including charges to income for the amortization of
debt discount, premium and expense and of the Company
Preferred Stock premium and expense.
(2) The term "gross income of the Company available for the
payment of interest" shall mean the balance remaining
after deducting from the total gross revenues of the
Company from all sources the following: (a) all
operating expenses and taxes, including charges to
income for general taxes and for federal and state
taxes measured by income, for retirement or
depreciation reserve and for amortization or other
disposition of amounts, if any, classified as amounts
in excess of original cost of utility plant and (b) the
amount, if any, by which the aggregate of the charges
to income during the period in question for repairs,
maintenance and provision for depreciation is less than
the maintenance and replacement requirement embodied in
the Indenture, or any indenture supplemental thereto,
succeeding the same or in substitution therefor.
(3) The term "accrued dividends" shall be deemed to mean in
respect of any share of any series of the Company
Preferred Stock as of any given date, the amount, if
any, by which the product of the rate of dividend per
annum, determined upon the shares of such series,
multiplied by the number of years and any fractional
part of a year which shall have elapsed from the date
after which dividends on such stock became cumulative
to such given date, exceeds the total dividends
actually paid on such stock and the dividends declared
and set apart for payment. Accumulations of dividends
shall not bear interest.
The term "outstanding", whenever used herein with respect to
shares of the Company Preferred Stock or of any other class of stock which
are by their terms redeemable, or with respect to bonds or other evidences
of indebtedness shall not include any such shares or bonds or evidences of
indebtedness which have been called for redemption in accordance with the
provisions applicable thereto, of which call for redemption notice shall
have been given, as required by such provisions and for the redemption of
which a sum of money sufficient to pay the amount payable on such
redemption shall have been deposited with a bank or trust company,
irrevocably in trust for such purpose, or any bonds or other evidences of
indebtedness for the payment of which at maturity provision has been made
in a similar manner.
The term "capital represented by" whenever used herein with
respect to shares of stock of the Company shall mean at any time the
amount paid in on or contributed, transferred or otherwise then held and
recorded or accounted for, as permitted by the provisions of law
applicable thereto, as capital with respect to said shares.
COMMON STOCK
Each share of Common Stock of the Company shall be equal to
every other share of said stock in every respect. The entire
consideration received for shares of Common Stock shall be capital.
VOTING POWERS GENERALLY
At all meetings of the shareholders of the Company, the
holders of the Preferred Stock and the holders of Common Stock shall be
entitled on all questions to one vote for each share of stock held by them
respectively, regardless of class.
Whenever and as often as four quarterly dividends payable on
the Company Preferred Stock of any series shall be in default, in whole or
in part, the holders of the Company Preferred Stock of all series shall
have the exclusive right, voting separately and as a single class, to vote
for and to elect the smallest number of directors which shall constitute a
majority of the then authorized number of directors of the Company, and,
in all matters other than the election of directors, each holder of one or
more shares of the Company Preferred Stock shall be entitled to one vote
for each such share of stock held. In the event of defaults entitling the
holders of Company Preferred Stock to elect a majority of the directors as
aforesaid, the holders of the Common Stock shall, subject to the prior
rights of the holders of the Preference Stock, have the exclusive right,
voting separately and as a class, to vote for and to elect the greatest
number of directors which shall constitute a minority of the then
authorized number of directors of the Company, and, in all matters other
than the election of directors, each holder of Common Stock shall be
entitled to one vote for each such share of stock held. The right of the
holders of the Company Preferred Stock to elect a majority of the
directors, however, shall cease when all defaults in the payment of
dividends on their stock shall have been cured, and such dividends shall
be declared and paid out of any funds legally available therefor as soon
as, in the judgment of the Board of Directors, is reasonably practicable.
The terms of office of all persons who may be directors of the Company at
the time when the right to elect a majority of the directors shall accrue
to the holders of the Company Preferred Stock, as herein provided, shall
terminate upon the election of their successors at a meeting of the
shareholders of the Company then entitled to vote. Such election shall be
held at the next annual meeting of shareholders or may be held at a
special meeting of shareholders, which shall be held upon notice as
provided in the By-laws of the Company for a special meeting of the
shareholders, at the request in writing of the holders of not less than
1,000 shares of the then outstanding Company Preferred Stock entitled to
vote addressed to the Secretary of the Company at its principal business
office. Any vacancy in the Board of Directors occurring during any period
that the Company Preferred Stock shall have elected representatives on the
Board shall be filled by a majority vote of the remaining directors (or
the one director) representing the class of stock theretofore represented
by the director causing the vacancy. Upon the termination of such
exclusive right of the holders of the Company Preferred Stock to elect a
majority of the directors of the Company, the terms of office of all the
directors of the Company shall terminate upon the election of their
successors at a meeting of the shareholders of the Company then entitled
to vote. Such election shall be held at the next annual meeting of
shareholders or may be held at a special meeting of shareholders, which
shall be held upon notice as provided in the By-laws of the Company for a
special meeting of the shareholders, at the request in writing of the
holders of not less than 1,000 shares of the then outstanding Common Stock
addressed to the Secretary of the Company at its principal business
office.
At all meetings of the shareholders held for the purpose of
electing directors during such times as the holders of the Company
Preferred Stock shall have the exclusive right to elect a majority of the
directors of the Company, the presence in person or by proxy of the
holders of a majority of the outstanding shares of Common Stock shall be
required to constitute a quorum of such class for the election of
directors, and the presence in person or by proxy of the holders of a
majority of the outstanding shares of the Company Preferred Stock shall be
required to constitute a quorum of such class for the election of
directors; provided, however, that the absence of a quorum of the holders
of stock of either class shall not prevent the election at any such
meeting, or adjournment thereof, of directors by the other class if the
necessary quorum of the holders of stock of such class is present in
person or by proxy at such meeting; and provided, further, that, in the
absence of a quorum of the holders of stock of either class, a majority of
those holders of such stock who are present in person or by proxy shall
have the power to adjourn the election of those directors to be elected by
that class from time to time without notice, other than announcement at
the meeting, until the requisite amount of holders of stock of such class
shall be present in person or by proxy.
At all elections of directors, shareholders will be entitled
to as many votes as shall equal the number of their shares of stock
multiplied by the number of directors to be elected for whom such
shareholders may vote, and they may cast all of such votes for a single
director or may distribute them among the number to be voted for, or any
two or more of them, as they may see fit.
For the purposes of the foregoing provisions, the Company
Preferred Stock of all series shall be deemed to be a single class.
PRE-EMPTIVE RIGHTS
The holders of shares of Preferred Stock, Class A Preferred
Stock, or of Common Stock shall have no pre-emptive rights to subscribe
for or purchase any additional issues of shares of the capital stock of
the Company of any class now or hereafter authorized or any bonds,
debentures, or other obligations or rights or options convertible into or
exchangeable for or entitling the holder or owner to subscribe for or
purchase any shares of capital stock, or any rights to exchange shares
issued for shares to be issued.
PREFERENCE STOCK
Preference Stock Issuable in Series
The shares of Preference Stock may be divided into and issued
in series. Each such series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes, and all
shares of the Preference Stock shall be identical, except as to the
following relative rights and preferences, as to which there may be
variations between different series:
(a) The rate of dividend;
(b) The price at which shares may be redeemed;
(c) The amount payable upon shares in event of involuntary
liquidation;
(d) The amount payable upon shares in event of voluntary
liquidation;
(e) The terms and conditions, if any, on which shares shall
be by their terms convertible into or exchangeable for
shares of any other class of stock of the Company;
(f) The terms and conditions of a sinking or purchase fund,
if any, for the redemption or purchase of such shares.
No change shall be made in any of the rights and preferences
of any series of Preference Stock at the time outstanding in those
respects in which the shares thereof vary from the shares of other series
of Preference Stock at the time outstanding without the affirmative vote
in favor thereof of the holders of at least 66-2/3% of the shares of such
series of Preference Stock at the time outstanding, in addition to such
other vote, if any, as may be required for such change under the
applicable provisions of these Articles or of the laws of the State of
Michigan at the time applicable thereto.
PREFERENCE STOCK
Authority of Board of Directors as to Other Series
To the extent that series of Preference Stock have not been
established and variations in the relative rights and preferences as
between series have not been fixed and determined in these Articles,
authority is vested in the Board of Directors of the Company to divide the
shares of Preference Stock into and to establish series of Preference
Stock, to fix and determine the relative rights and preferences of the
shares of any series so established, to issue and sell any and all of the
authorized and unissued shares of Preference Stock as shares of any series
thereof established by action of the Board of Directors pursuant hereto,
and to create a sinking or purchase fund for the redemption or purchase of
shares of any series without the necessity of providing a sinking or
purchase fund for any other series.
PREFERENCE STOCK
General Provisions
The following provisions shall apply to all shares of the
Preference Stock irrespective of series:
(A) The shares of Preference Stock shall be
subordinate to the Preferred Stock but in preference to the
Common Stock as to the payment of dividends. The holders of
the Preference Stock of each series shall be entitled to
receive dividends, payable when and as declared by the Board
of Directors, at such rates as shall be determined for the
respective series, from the date upon which such share shall
have been originally issued, before any dividends shall be
declared or paid upon or set apart for the Common Stock or any
other stock of the Company not having preference over the
Preference Stock as to payment of dividends. Such dividends
shall be cumulative so that if for any dividend period or
periods dividends shall not have been paid or declared and set
apart for payment upon all outstanding Preference Stock at the
rates determined for the respective series, the deficiency
shall be fully paid, or declared and set apart for payment,
before any dividends shall be declared or paid upon the Common
Stock or any other stock of the Company not having preference
over the Preference Stock as to payment of dividends.
Dividends shall not be declared and set apart for payment, or
paid, on the Preference Stock of any one series, for any
dividend period, unless dividends have been or are
contemporaneously declared and set apart for payment or paid
on the Preference Stock of all series for all dividend periods
terminating on the same or an earlier date. As to all series
of Preference Stock, the term "dividend period" shall mean any
of the four calendar quarters in each year commencing,
respectively, the first day of January, April, July and
October and the first days of each such calendar quarter shall
be the dividend payment dates for the regular quarterly
dividends payable for the preceding dividend period of such
series.
(B) When full cumulative dividends as aforesaid upon
the Preference Stock of all series then outstanding for all
past dividend periods and for the current dividend periods
shall have been paid or declared and set apart for payment,
the Board of Directors may declare dividends on the Common
Stock or any other stock over which the Preference Stock has a
preference as to payment of dividends, and no holders of any
series of the Preference Stock as such shall be entitled to
share therein.
(C) The shares of Preference Stock shall be
subordinate to the Preferred Stock but in preference to the
Common Stock upon any dissolution, liquidation or winding up
of the Company, whether voluntary or involuntary. Upon any
such dissolution, liquidation or winding up of the Company,
whether voluntary or involuntary, the holders of Preference
Stock of each series, without any preference of the shares of
any series of Preference Stock over the shares of any other
series of Preference Stock, shall be entitled to receive out
of the assets of the Company, whether capital, surplus or
other, before any distribution of the assets to be distributed
shall be made to the holders of Common Stock or of any other
stock not having preference as to assets over the Preference
Stock, the amount determined to be payable on the shares of
such series in the event of voluntary or involuntary
liquidation, as the case may be. In case the assets shall not
be sufficient to pay in full the amounts determined to be
payable on all the shares of Preference Stock in the event of
voluntary or involuntary liquidation, as the case may be, then
the assets available for such payment shall be distributed
ratably among the holders of the Preference Stock of all
series in accordance with the amounts determined to be payable
on the shares of each series, in the event of voluntary or
involuntary liquidation, as the case may be, in proportion to
the full preferential amounts to which they are respectively
entitled. After payment to the holders of the Preference
Stock of the full preferential amounts hereinbefore provided
for, the holders of the Preference Stock as such shall have no
right or claim to any of the remaining assets of the Company,
either upon any distribution of such assets or upon
dissolution, liquidation or winding up, and the remaining
assets to be distributed, if any, upon a distribution of such
assets or upon dissolution, liquidation or winding up, may be
distributed among the holders of the Common Stock or of any
other stock over which the Preference Stock has preference as
to assets. Without limiting the right of the Company to
distribute its assets or to dissolve, liquidate or wind up in
connection with any sale, merger, or consolidation, the sale
of all the property of the Company to, or the merger or
consolidation of the Company into or with any other
corporation shall not be deemed to be a distribution of assets
or a dissolution, liquidation or winding up for the purposes
of this paragraph.
(D) At the option of the Board of Directors of the
Company, the Company may redeem any series of Preference Stock
determined to be redeemable, or any part of any series, at any
time at the redemption price determined for such series;
provided, however, that not less than thirty nor more than
sixty days previous to the date fixed for redemption a notice
of the time and place thereof shall be given to the holders of
record of the Preference Stock so to be redeemed, by mail or
publication, in such manner as may be prescribed by the By-
laws of the Company or by resolution of the Board of
Directors; and, provided, further, that in every case of
redemption of less than all of the outstanding shares of any
one series of Preference Stock, the shares of such series to
be redeemed shall be chosen by lot in such manner as may be
prescribed by resolution of the Board of Directors. At any
time after notice of redemption has been given in the manner
prescribed by the By-laws of the Company or by resolution of
the Board of Directors to the holders of stock so to be
redeemed, the Company may deposit, or may cause its nominee to
deposit, the aggregate redemption price with some bank or
trust Company named in such notice, payable on the date fixed
for redemption as aforesaid and in the amounts aforesaid to
the respective orders of the holders of the shares so to be
redeemed, on endorsement to the Company or its nominee, or
otherwise, as may be required, and upon surrender of the
certificates for such shares. Upon the deposit of said money
as aforesaid, or, if no such deposit is made, upon said
redemption date (unless the Company defaults in making payment
of the redemption price as set forth in such notice), such
holders shall cease to be shareholders with respect to said
shares and from and after the making of said deposit, or, if
no such deposit is made, after the redemption date (the
Company not having defaulted in making payment of the
redemption price as set forth in such notice), the said
holders shall have no interest in or claim against the
Company, or its nominee, with respect to said shares, but
shall be entitled only to receive said moneys on the date
fixed for redemption as aforesaid from said bank or trust
Company, or if no such deposit is made, from the Company,
without interest thereon, upon endorsement, if required, and
surrender of the certificates as aforesaid.
If such deposit shall be made by a nominee of the
Company as aforesaid, such nominee shall upon such deposit
become the owner of the shares with respect to which such
deposit was made and certificates of stock may be issued to
such nominee in evidence of such ownership.
In case the holder of any such Preference Stock shall
not, within six years after said deposit, claim the amount
deposited as above stated for the redemption thereof, the
Depositary shall upon demand pay over to the Company such
amounts so deposited and the Depositary shall thereupon be
relieved from all responsibility to the holder thereof.
Nothing herein contained shall limit any legal right of
the Company to purchase any shares of the Preference Stock.
(E-1)So long as any shares of the Preference Stock
are outstanding, the Company shall not, without the
affirmative vote in favor thereof of the holders of at least
66-2/3% of the shares of Preference Stock at the time
outstanding, adopt an amendment to these Articles if such
amendment would either (i) authorize or create, or increase
the authorized amount of, any class of stock, other than
shares of the Preferred Stock (whether now or hereafter
authorized), which is entitled to dividends or assets in
priority to the Preference Stock or (ii) change any of the
rights and preferences of the then outstanding Preference
Stock.
(E-2)So long as any shares of the Preference Stock
are outstanding, the Company shall not, without the
affirmative vote in favor thereof of the holders of at least a
majority of the shares of Preference Stock at the time
outstanding, adopt an amendment to these Articles if such
amendment would either (i) increase the authorized amount of
Preference Stock or (ii) authorize or create, or increase the
authorized amount of, any class of stock, which is entitled to
dividends or assets on a parity with the Preference Stock,
provided; however, that nothing in this paragraph or in
paragraph E-1 above contained shall authorize the adoption of
any amendment of these Articles by the vote of the holders of
a less number of shares of Preference Stock, or of any other
class of stock, or of all classes of stock, than is required
for such amendment by the laws of the State of Michigan at the
time applicable thereto.
PREFERENCE STOCK
Voting Powers
The holders of Preference Stock shall not have any right to
vote for the election of directors or for any other purpose, except as
otherwise provided by law, as set forth in the two immediately preceding
paragraphs and as set forth below. Whenever and as often as six quarterly
dividends payable on the Preference Stock of any series shall be in
default, in whole or in part, the holders of the Preference Stock of all
series shall have the exclusive right, voting separately and as a single
class, to vote for and to elect two directors, subject to the prior rights
of the holders of the Preferred Stock. In the event of defaults entitling
the Preference Stock to elect two directors as aforesaid, the holders of
the Common Stock shall have the exclusive right, voting separately and as
a class, to elect the remaining number of directors of the Company,
subject to the prior rights of the holders of the Preferred Stock. The
right of the holders of the Preference Stock to elect two directors,
however, shall cease when all defaults in the payment of dividends on
their stock shall have been cured, and such dividends shall be declared
and paid out of any funds legally available therefor as soon as, in the
judgment of the Board of Directors, is reasonably practicable. The terms
of office of all persons who may be directors of the Company at the time
when the right to elect two directors shall accrue to the holders of the
Preference Stock, as herein provided, shall terminate upon the election of
their successors at a meeting of the shareholders of the Company then
entitled to vote. Such election shall be held at the next annual meeting
of shareholders or may be held at a special meeting of shareholders, which
shall be held upon notice as provided in the By-laws of the Company for a
special meeting of the shareholders, at the request in writing of the
holders of not less than 1,000 shares of the then outstanding Preference
Stock addressed to the Secretary of the Company at its principal business
office. Any vacancy in the Board of Directors occurring during any period
when the Preference Stock shall have elected representatives on the Board
shall be filled by a majority vote of the remaining directors (or the one
director) representing the class of stock theretofore represented by the
director causing the vacancy. In the event of simultaneous vacancies
among directors elected by the holders of the Preference Stock, an
election, pursuant to the provisions of this paragraph, will be held.
Upon the termination of such exclusive right of the holders of the
Preference Stock to elect two directors of the Company, the terms of
office of all the directors of the Company shall terminate upon the
election of their successors at a meeting of the shareholders of the
Company then entitled to vote. Such election shall be held at the next
annual meeting of shareholders or may be held at a special meeting of
shareholders, which shall be held upon notice as provided in the By-laws
of the Company for a special meeting of the shareholders at the request in
writing of the holders of not less than 1,000 shares of the then
outstanding Common Stock addressed to the Secretary of the Company at its
principal business office.
At all meetings of the shareholders held for the purpose of
electing directors during such times as the holders of the Preference
Stock shall have the exclusive right to elect two of the directors of the
Company, the presence in person or by proxy of the holders of a majority
of the outstanding shares of Common Stock shall be required to constitute
a quorum of such class for the election of directors, and the presence in
person or by proxy of the holders of a majority of the outstanding shares
of Preference Stock of all series shall be required to constitute a quorum
of such class for the election of directors; provided, however, that the
absence of a quorum of the holders of stock of either class shall not
prevent the election at any such meeting, or adjournment thereof, of
directors by the other class if the necessary quorum of the holders of
stock of such class is present in person or by proxy at such meeting; and
provided, further, that, in the absence of a quorum of the holders of
stock of either class, a majority of those holders of such stock who are
present in person or by proxy shall have the power to adjourn the election
of those directors to be elected by that class from time to time without
notice, other than announcement at the meeting, until the requisite amount
of holders of stock of such class shall be present in person or by proxy.
At all elections of directors, each shareholder will be
entitled to as many votes as shall equal the number of his shares of stock
multiplied by the number of directors to be elected for whom such
shareholder may vote, and he may cast all of such votes for a single
director or may distribute them between the two directors to be voted for,
as he may see fit.
For the purposes of the foregoing provisions, the Preference
Stock of all series shall be deemed to be a single class.
PREFERENCE STOCK
Pre-emptive Rights
The holders of shares of Preference Stock shall have no pre-
emptive rights to subscribe for or purchase any additional issues of
shares of the capital stock of the Company of any class now or hereafter
authorized or any bonds, debentures or other obligations or rights or
options convertible into or exchangeable for or entitling the holder or
owner to subscribe for or purchase any shares of capital stock, or any
rights to exchange shares issued for shares to be issued.
ARTICLE VIII
Each director shall be a shareholder of the Company and any
Director ceasing to be a shareholder shall thereupon immediately cease to
be a Director.
<PAGE>
Signed January 31, 1994
/s/ Michael G. Morris
Michael G. Morris
President and Chief Executive Officer
<PAGE>
EXHIBIT NO. (5)
<PAGE>
EXHIBIT NO. (5)
February 4, 1994
Consumers Power Company
212 West Michigan Avenue
Jackson, MI 49201
I am the Finance Counsel for Consumers Power Company, a Michigan
corporation (the "Company"). I refer to the Registration Statement on
Form S-3 (the "Registration Statement") being filed by the Company with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration of 8,000,000 shares of Class A Preferred Stock, cumulative,
without par value (the "New Preferred Stock").
I am familiar with the proceedings to date with respect to the proposed
issuance and sale of the New Preferred Stock and have examined such
records, documents and such questions of law, and have satisfied myself as
to such matters of fact, as I have considered relevant and necessary as a
basis for this opinion. I have assumed the authenticity of all documents
submitted to me as originals, the genuineness of all signatures, the legal
capacity of all natural persons and the conformity with the original
documents of any copies thereof submitted to me for examination.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Michigan.
2. When (a) the Registration Statement, as finally amended, shall have
become effective under the Securities Act; (b) the Company's Board
of Directors or a duly authorized committee thereof shall have duly
adopted final resolutions authorizing the issuance and sale of the
New Preferred Stock as contemplated by the Registration Statement;
and (c) certificates for the New Preferred Stock shall have been
duly executed, countersigned, and registered and duly delivered to
the purchasers thereof against payment of the agreed consideration
therefor, the shares of New Preferred Stock will be legally issued,
fully paid and nonassessable.
I do not find it necessary for the purposes of this opinion to cover, and
accordingly I express no opinion as to, the application of the securities
or blue sky laws of the various states to the sale of the New Preferred
Stock.
I am a member of the bar of the State of Michigan and I express no opinion
as to the laws of any jurisdiction other than the State of Michigan and
the federal law of the United States of America.
I hereby consent to the filing of this opinion as an exhibit to said
Registration Statement and to all references to me included in or made a
part of the Registration Statement.
Very truly yours,
/s/ Denise M. Sturdy
<PAGE>
<PAGE>
EXHIBIT NO. (12)<PAGE>
<PAGE>
EXHIBIT NO. (12)
<TABLE>
CONSUMERS POWER COMPANY
RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS
(Millions of Dollars)
<CAPTION>
Nine Months
Ended Years Ended December 31
September 30, 1993 1992 1991 1990 1989 1988
------------------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
(b) (c)(d) (e) (f) (f)
Earnings as Defined (a)
- -----------------------
Net income (loss) $ 148 $ (244) $ (235) $ (382) $ 352 $ 314
Income taxes 74 (127) (75) 190 175 154
Exclude equity basis subsidiaries (4) 12 2 - - (1)
Fixed charges as defined, adjusted
to exclude capitalized interest
of $1, $1, $1, $36, $174 and
$160 million and preferred
dividend tax effect of $4, $6,
$5, $6, $9, $13 million for the
nine months ended September 30,
1993, and the years ended
December 31, 1992, 1991, 1990,
1989 and 1988, respectively 147 189 338 290 194 257
------ ------- ------ ------- ------ ------
Earnings as defined $ 365 $ (170) $ 30 $ 98 $ 721 $ 724
====== ======= ====== ======= ====== =======
Fixed charges and
Preferred Dividends as defined (a)
Interest on long-term debt $ 116 $ 150 $ 249 $ 268 $ 303 $ 329
Estimated interest portion of
lease rentals 8 14 16 16 16 16
Other interest charges 16 15 64 31 31 47
Preferred Dividends 12 17 15 17 27 38
Fixed charges and Preferred
dividends as defined $ 152 $ 196 $ 344 $ 332 $ 377 $ 430
====== ======= ======= ======= ====== ======
Ratio of earnings to fixed
charges and preferred dividends 2.40 - - - 1.91 1.68
======= ====== ======= ======= ====== ======
<FN>
See notes on Page 2.
<PAGE>
<PAGE> 2
NOTES:
(a) Earnings and fixed charges and preferred dividends as defined in instructions for Item 503 of Regulation S-K.
(b) For the year ended December 31, 1992, fixed charges and preferred dividends exceeded earnings by $366 million.
Earnings as defined include a $520 million pre-tax loss on the settlement of MCV Power Purchases and $(15) million
for potential customer refunds and other reserves related to 1992 but recorded in 1991. The ratio of earnings to
fixed charges and preferred dividends would have been 1.71 excluding these amounts.
(c) Net loss in 1991 excludes an extraordinary after-tax loss of $14 million.
(d) For the year ended December 31, 1991, fixed charges and preferred dividends exceeded earnings by $314 million.
Earnings as defined include $398 million of pre-tax Midland-related write-downs and reserve amounts and $44
million for potential customer refunds and other reserves recorded in 1991 but related to 1992 and 1990. The
ratio of earnings to fixed charges and preferred dividends would have been 1.37 excluding these amounts.
(e) For the year ended December 31, 1990, fixed charges and preferred dividends exceeded earnings by $234 million.
Earnings as defined include $716 million of pre-tax Midland-related write-downs and $(29) million for potential
customer refunds and other reserves related to 1990 but recorded in 1991. The ratio of earnings to fixed charges
and preferred dividends would have been 2.36 excluding these amounts.
(f) The 1989 and 1988 periods were restated to reflect the 1990 transfer of CMS Midland and MEC Development
Corporation to CMS Energy Corporation. (Although these companies were returned to Consumers in 1991, no
additional restatements were made.)
</TABLE>
<PAGE>
<PAGE>
EXHIBIT NO. (15)
<PAGE>
<PAGE>
EXHIBIT NO. (15)
To Consumers Power Company:
We are aware that Consumers Power Company has incorporated by reference in
this registration statement its Form 10-Q for the quarter ended March 31,
1993, its Form 10-Q for the quarter ended June 30, 1993 and its Form 10-Q
for the quarter ended September 30, 1993, which include our reports dated
May 11, 1993, August 9, 1993 and November 9, 1993, respectively, covering
the unaudited interim financial information contained therein. Pursuant
to Regulation C of the Securities Act of 1933, those reports are not
considered a part of the registration statement prepared or certified by
our Firm or reports prepared or certified by our Firm within the meaning
of Sections 7 and 11 of the Act.
ARTHUR ANDERSEN & CO.
Detroit, Michigan,
February 4, 1994.
<PAGE>
<PAGE>
EXHIBIT NO. (23)(a)
(See Exhibit No. (5) Hereto)
<PAGE>
<PAGE>
EXHIBIT NO. (23)(b)<PAGE>
<PAGE>
EXHIBIT NO. (23)(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated April 5,
1993 included or incorporated by reference in Consumers Power Company's
Form 10-K for the year ended December 31, 1992 and to all references to
our Firm included in this registration statement.
ARTHUR ANDERSEN & CO.
Detroit, Michigan,
February 4, 1994.
<PAGE>
<PAGE>
EXHIBIT NO. (23)(c)<PAGE>
<PAGE>
Exhibit No. (23)(c)
CONSENT
I hereby consent to the incorporation in this Registration Statement of
the references to me under the caption "Experts" in the Incorporated
Documents.
/s/ David A. Mikelonis
_________________________________
David A. Mikelonis
Senior Vice President
and General Counsel for
Consumers Power Company
February 4, 1994
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EXHIBIT NO. (24)<PAGE>
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EXHIBIT (24)
Extract from the minutes of a meeting of the Board of Directors of
Consumers Power Company (the "Company" held on January 29, 1994.
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Proposed Issuance and Sale of Preferred Stock
To continue to improve the Company's capital structure,
management recommended that the Company issue and sell new series of
Company Preferred Stock either present Preferred Stock and/or Class A
Preferred Stock (expected to be approved at a Special Meeting of
Shareholders to be held January 31, 1994) with the net proceeds of such
sale(s) not to exceed $200 million. Management further recommended the
appointment of a Special Committee to take any and all further action to
facilitate the proposed sale(s). The matter was discussed fully.
Upon motion duly made and seconded, the following
resolutions were thereupon unanimously adopted:
RESOLVED: That the Board of Directors approves the
issue and sale of new series of Company Preferred Stock, either Preferred
Stock and/or Class A Preferred Stock of the Company, with net proceeds not
to exceed $200 million, and the officers of the Company, and each of them,
are authorized in their discretion, on its behalf, to execute and file
with the Securities and Exchange Commission all requisite registration
statements, papers and documents with respect to the registration, issue
and sale of such new series of preferred stock, in such form as may be
approved by the officers and directors of the Company executing the same,
and to do all other things necessary to make any such registration
effective, including the execution and filing of any necessary or
appropriate amendments; and
RESOLVED FURTHER: That W. T. McCormick, Jr., S. K.
Smith, Jr. and V. J. Fryling are appointed to a Special Committee of this
Board of Directors, which shall have the full authority to act on behalf
of the Board for the purposes of: (a) establishing one or more new series
of Company Preferred Stock, with net proceeds not to exceed $200 million,
establishing the rights and preferences thereof, and doing all acts and
things as they deem necessary in order to issue such new series in
accordance with the Articles of Incorporation; (b) determining the
offering price, any underwriting discounts and the price to the Company of
the proposed issuance and sale of said new series of Company Preferred
Stock; and
RESOLVED FURTHER: That the officers of the Company,
and each of them, are authorized to determine the jurisdictions in which
appropriate action shall be taken to qualify or register for sale, or to
request an exemption from such qualification or registration, under the
securities or Blue Sky Laws, all or such part of the new series of Company
Preferred Stock of the Company as they may deem advisable; to perform on
behalf of the Company any and all such acts as they may deem necessary or
advisable in order to comply with the applicable laws of any such
jurisdictions, and in connection therewith, to execute and file all
requisite papers and documents, including, but not limited to,
applications, reports, surety bonds, irrevocable consents and appointments
of attorneys for service of process; and the execution by such officers or
any of them of any such paper or document or the doing by them of any act
in connection with the foregoing matters shall conclusively establish
their authority therefor from the Company; and
RESOLVED FURTHER: That the officers of the Company,
and each of them, in their discretion and on its behalf, are authorized
and empowered to execute and deliver one or more underwriting agreements
as they deem appropriate for the proposed sale of the new series of
Company Preferred Stock; and
RESOLVED FURTHER: That the officers of the Company,
and each of them, are authorized to make application to the New York Stock
Exchange for the listing on such Exchange of any new series of Company
Preferred Stock of the Company; that Messrs. Alan M. Wright and Thomas A.
McNish, and each one of them is, designated to represent the Company in
connection with any application or applications for such listing(s) and to
appear on behalf of the Company before such official or body of said
Exchange as may be appropriate, such authority to make such changes, upon
the advice of counsel, in said application(s) or in any agreements or
other papers relating thereto as may be necessary or appropriate to
conform with the requirements for listing; and
RESOLVED FURTHER: That the officers of the Company,
and each of them, are authorized to have issued and to deliver, at one
time or from time to time, certificates representing the number of such
shares of the new series of Company Preferred Stock of the Company that
may be sold pursuant to the foregoing resolutions; and
RESOLVED FURTHER: That the officers of the Company,
and each of them, are authorized and empowered to execute and deliver all
other documents, papers, applications, agreements and instruments by or on
behalf of the Company and to do all acts and things they deem necessary or
appropriate and as counsel may advise to carry out the intent and purpose
of the foregoing resolutions.
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I, Thomas A. McNish, Secretary of Consumers Power Company, do hereby
CERTIFY that the foregoing is a true and correct copy of resolutions duly
and regularly adopted at a meeting of the Board of Directors of Consumers
Power Company duly called and held on January 29, 1994, at which a quorum
was in attendance and voting throughout, and that said resolutions have
not since been rescinded but are still in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
Consumers Power Company this 4th day of February, 1994.
/s/ Thomas A. McNish
___________________________________
Thomas A. McNish
Secretary
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Consumers Power Company
General Offices: 212 West Michigan Avenue, Jackson, MI 49201
(517) 788-0550
January 26, 1994
Mr. Alan M. Wright and
Mr. Thomas A. McNish
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
We hereby make, constitute and appoint each of you our true and lawful
attorney for each of us and in each of our names, places and steads to
sign and cause to be filed with the Securities and Exchange Commission
registration statement(s) and/or any amendment or amendments thereto,
including post-effective amendment or amendments, to be accompanied in
each case by a prospectus or supplemental prospectus and any necessary
exhibits with respect to the issue and sale of approximately $200,000,000
aggregate amount of Company Preferred Stock.
Very truly yours,
/s/William T. McCormick, Jr.
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William T. McCormick, Jr. William U. Parfet
/s/James J. Duderstadt /s/Percy A. Pierre
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James J. Duderstadt Percy A. Pierre
/s/Victor J. Fryling /s/Thomas F. Russell
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Victor J. Fryling Thomas F. Russell
/s/Earl D. Holton /s/S. Kinnie Smith, Jr.
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Earl D. Holton S. Kinnie Smith, Jr.
/s/Lois A. Lund /s/Robert D. Tuttle
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Lois A. Lund Robert D. Tuttle
/s/Frank H. Merlotti /s/Kenneth Whipple
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Frank H. Merlotti Kenneth Whipple
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONSUMERS POWER COMPANY
EXHIBITS
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
(1) Form of Underwriting Agreement.
(4)(a) Composite Working Copy of Indenture dated as of September 1,
1945, between Consumers Power Company and Chemical Bank
(successor to Manufacturers Hanover Trust Company), as
Trustee, including therein indentures supplemental thereto
through the Forty-third Supplemental Indenture dated as of
May 1, 1979. (Designated in Consumers Power Company's
Registration No 2-65973 as Exhibit (b)(1)(4).)
Indentures Supplemental thereto:
Consumers
Power Company
Sup Ind/Dated as of File Reference Exhibit
- ------------------- -------------- --------
44th 11/15/79 Reg No 2-65973 (b)(1)-7
45th 01/15/80 Reg No 2-68900 (b)(1)-5
46th 01/15/80 Reg No 2-69704 (4)(b)
47th 06/15/80 Form 10-K for
year end Dec 31,
1980, File
No 1-5611 (4)(b)
48th 03/15/81 Reg No 2-73741 (4)(b)
49th 11/01/81 Reg No 2-75542 (4)(b)
50th 03/01/82 Form 10-K for
year end Dec 31,
1981, File
No 1-5611 (4)(b)
51st 08/10/82 Reg No 2-78842 (4)(f)
52nd 08/31/82 Reg No 2-79390 (4)(f)
53rd 12/01/82 Reg No 2-81077 (4)(f)
54th 05/01/83 Reg No 2-84172 (4)(e)
55th 09/15/83 Reg No 2-86751 (4)(e)
56th 10/15/83 Reg No 2-87735 (4)(e)
57th 03/01/84 Reg No 2-89215 (4)(e)
58th 07/16/84 Form 10-Q for
quarter ended
June 30, 1984,
File No 1-5611 (4)(f)
59th 10/01/84 Reg No 2-93438 (4)(c)
60th 06/01/85 Form 10-Q for
quarter ended
June 30, 1985,
File No 1-5611 (4)(f)
61st 10/15/86 Reg No 33-9732 (4)(e)
63rd 04/15/87 Form 10-Q for
quarter ended
June 30, 1987
File No 1-5611 (4)(f)
64th 06/15/87 Form 10-Q for
quarter ended
June 30, 1987
File No 1-5611 (4)(g)
65th 02/15/88 Form 8-K dated
Feb 18, 1988
File No 1-5611 (4)
66th 04/15/88 Form 10-Q for
quarter ended
March 31, 1988
File No. 1-5611 (4)(d)
67th 11/15/89 Reg No 33-31866 (4)(d)
68th 06/15/93 Reg No 33-41126 (4)(c)
69th 09/15/93 Form 8-K dated
Sept 21, 1993
File No. 1-5611 (4)
(4)(b) Composite Articles of Incorporation of Consumers Power
Company, as amended.
(4)(c) Copy of the By-Laws of Consumers Power Company. (Designated
in Consumers Power Company Form 10-K for the year ended
December 31, 1991, File No 1-5611, as Exhibit (3)(d).)
(5) Opinion of Counsel.
(12) Computation of Ratios of Earnings to Fixed Charges and
Preferred Dividends.
(15) Letter regarding unaudited interim financial information.
(23)(a) Consent of Counsel is contained in Exhibit 5 hereto.
(23)(b) Consent of Arthur Andersen & Co.
(23)(c) Consent of David A. Mikelonis, Senior Vice President and
General Counsel of Consumers.
(24) Power of Attorney.
Exhibits listed above which have been filed with the Securities
and Exchange Commission are incorporated herein by reference with the same
effect as if filed with this registration statement.
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