UNDERWRITING AGREEMENT
July 22, 2003
To the Representatives Named
on the Signature Page Hereof:
Dear Sirs:
Subject to the terms and conditions stated or incorporated by reference herein,
Consolidated Edison, Inc. (the "Company") hereby agrees to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") and the
Underwriters hereby agree to purchase, severally and not jointly, the principal
amount set forth opposite their names in Schedule I hereto of the securities
specified in Schedule II hereto (the "Designated Securities").
The representatives named on the signature page hereof (the "Representatives")
represent that the Underwriters have authorized the Representatives to enter
into this Underwriting Agreement and to act hereunder on their behalf.
Except as otherwise provided in Schedule II hereto each of the provisions of the
Company's Underwriting Agreement Basic Provisions, dated October 25, 2001, as
filed as Exhibit 1.2 to Registration Statement No. 333-72264 (the "Basic
Provisions"), is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein. Unless otherwise defined herein, terms
defined in the Basic Provisions are used herein as therein defined.
Payment for the Designated Securities will be made against delivery thereof to
the Representatives for the accounts of the respective Underwriters at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto.
- 2 -
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the Basic Provisions incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
Very truly yours,
CONSOLIDATED EDISON, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Vice President and Treasurer
Confirmed and Accepted as of the date hereof on behalf of itself and each other
Underwriter, if any:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title Vice President
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
Citigroup Global Markets Inc. $54,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 54,000,000
Banc One Capital Markets, Inc. 11,000,000
BNY Capital Markets, Inc. 11,000,000
Xxxxxxx, Sachs & Co. 11,000,000
HSBC Securities (USA) Inc. 11,000,000
X.X. Xxxxxx Securities Inc. 11,000,000
Xxxxxx Brothers Inc. 11,000,000
Mellon Financial Markets, LLC 11,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 11,000,000
Loop Capital Markets, LLC 2,000,000
The Xxxxxxxx Capital Group, L.P. 2,000,000
-----------------
Total $200,000,000
SCHEDULE II
Title of Designated Securities:
3.625% Debentures, Series 2003 A
Aggregate principal amount:
$200,000,000
Price to Public:
Initially 99.872% of the principal amount of the Designated Securities,
plus accrued interest, if any, from July 25, 2003 to the date of
delivery, thereafter at market prices prevailing at the time of sale or
at negotiated prices.
Purchase Price by Underwriters:
99.272% of the principal amount of the Designated Securities, plus
accrued interest, if any, from July 25, 2003 to the date of delivery.
Specified funds for, and manner of, payment of purchase price:
Funds will be delivered by wire transfer pursuant to the Company's
written instructions to the Representatives.
Indenture:
Indenture, dated as of April 1, 2002, between the Company and JPMorgan
Chase Bank, as Trustee.
- 2 -
Maturity:
August 1, 2008
Interest Rate:
As set forth in the prospectus supplement, dated July 22, 2003, for the
Designated Securities (the "Prospectus Supplement") to the prospectus,
dated January 17, 2003 (the "Prospectus"), filed with the Securities and
Exchange Commission (the "SEC") pursuant to Rule 424(b)(2) under the
Securities Act of 1933, as amended, in connection with the Company's
Registration Statement on Form S-3 (No. 333-102005, declared effective
by the SEC on January 17, 2003).
Interest Payment Dates:
As set forth in the Prospectus Supplement.
Redemption Provisions:
As set forth in the Prospectus Supplement.
Sinking Fund Provisions:
None.
Time of Delivery:
10:00 a.m., on July 25, 2003.
Closing Location:
Room 1810-S at the Company, 0 Xxxxxx Xxxxx, Xxx Xxxx, XX 00000.
- 3 -
Information furnished by or on behalf of the Underwriters for use in the
Prospectus for the Designated Securities:
1. The sentence regarding delivery of the Designated Securities on the
front cover of the Prospectus Supplement
2. The second and third paragraphs, the third and fourth sentences of the
fourth paragraph, and the fifth, sixth and seventh paragraphs of the
section entitled "Underwriting" beginning on page S-9 of the Prospectus
Supplement.
Addresses of Representatives:
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx III
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Captions in the Prospectus and Prospectus Supplement referred to in Section
6(c)(xi) of the Basic Provisions:
Description of Debt Securities
Description of Debentures
Modification of Basic Provisions
A. Throughout the Basic Provisions, change all references to "Representative" to
"Representatives."
B. In the first Section 1:
1. In subsection (d), add at the end thereof "(a "Material Adverse
Effect")".
2. Add after subsection (m):
"(n) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 0000
Xxx) (each, a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification
-4-
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and is
validly issued, fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary.
(o) The documents incorporated by reference in the
prospectus do not include non-GAAP financial measures within the
meaning of Regulation G or Item 10 of Regulation S-K of the
Commission."
C. Change to Section 2 the number of the second Section 1, increase by one
the number of, and references to, each of the remaining Sections, and
revise Section 2 to read in its entirety:
"Upon the execution of the Underwriting Agreement, the several
Underwriters propose to offer the Designated Securities for sale
upon the terms and conditions set forth in the Prospectus".
D. In Section 4: add after subsection (e):
"(f) The Company will use the net proceeds received by it from
the sale of the Designated Securities in the manner specified in
the Prospectus under "Use of Proceeds".
E. In Section 6:
1. Revise subsection (c)(vii) to read:
"The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture and this Underwriting
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under, (i) any statute, agreement or instrument known to him to
which the Company or any Subsidiary is a party or by which it or
any Subsidiary is bound or to which any of the property of the
Company or of any Subsidiary is subject, (ii) any order, rule or
regulation known to him of any court, governmental agency or body
having jurisdiction over the Company or any of its properties,
except in each of (i) or (ii) for such conflicts, defaults or
breaches as would not have a Material Adverse Effect, or (iii)
the Certificate of Incorporation or the Company's by-laws;"
-5-
2. Add the following subsections to Section 6(c) after subsection (xii):
"(xiii) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise described in the Prospectus,
all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and is validly issued, fully
paid and non-assessable and, to the best of our knowledge, is
owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of
capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any securityholder of such
Subsidiary;
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company
and public officials."
F. Add a new Section 18:
"18. Notwithstanding any other provision of this Underwriting
Agreement, from the commencement of discussions with respect to
the transactions contemplated hereby, the Company (and each
employee, representative or other agent of the Company) may
disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure (as such terms are used in
Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury
Regulations promulgated thereunder) of the transactions
contemplated by this Underwriting Agreement and all materials of
any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure."