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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 3, 1995
REGISTRATION NOS. 33-
33- -01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CONSUMERS POWER COMPANY CONSUMERS POWER COMPANY FINANCING I
(Exact name of registrant as specified in (Exact name of registrant as
its charter) specified in its charter)
MICHIGAN DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
38-0442310 38-6660663
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
212 WEST MICHIGAN AVENUE
JACKSON, MICHIGAN 49201
(517) 788-0550
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
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ALAN M. WRIGHT
SENIOR VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
212 WEST MICHIGAN AVENUE
JACKSON, MICHIGAN 49201
(517) 788-0351
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
DENISE M. STURDY, ESQ. THOMAS J. IGOE, JR., ESQ.
CONSUMERS POWER COMPANY REID & PRIEST LLP
212 WEST MICHIGAN AVENUE 40 WEST 57TH STREET
JACKSON, MICHIGAN 49201 NEW YORK, NEW YORK 10019
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
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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, please check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS PROPOSED MAXIMUM AGGREGATE
OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(2)(3) PRICE(2)(3) REGISTRATION FEE
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Preferred Securities of Consumers Power
Company Financing I.................. 4,000,000 $25.00 $100,000,000 $34,482.76
Subordinated Deferrable Interest Notes
of Consumers Power Company(1)(4).....
Guarantee of Preferred Securities of
Consumers Power Company Financing I
by Consumers Power Company...........
Total.................................. $100,000,000 $34,482.76
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(1) The Subordinated Deferrable Interest Notes will be purchased by, and
constitute assets of, Consumers Power Company Financing I.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Exclusive of accrued interest and distributions, if any.
(4) No separate consideration will be received for Consumers Power Company's
Subordinated Deferrable Interest Notes or its Guarantee.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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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 DATED NOVEMBER 3, 1995
PROSPECTUS (SUBJECT TO COMPLETION)
4,000,000 PREFERRED SECURITIES
CONSUMERS POWER COMPANY FINANCING I
% TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPRS(SM)")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
CONSUMERS POWER COMPANY
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The % Trust Originated Preferred Securities (the "Preferred Securities")
offered hereby evidence preferred undivided beneficial interests in the assets
of Consumers Power Company Financing I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"). Consumers Power Company, a
Michigan corporation ("Consumers" or the "Company"), will own all the common
securities (the "Common Securities" and, together with the Preferred Securities,
the "Trust Securities") representing common undivided beneficial interests in
the assets of the Trust. The Trust exists for the sole purpose of issuing the
Trust Securities and investing the proceeds thereof in an equivalent principal
amount of % Subordinated Deferrable Interest Notes due 2035 (the
"Subordinated Notes") of Consumers. The Subordinated Notes will be unsecured
obligations of Consumers and will be subordinate and junior in right of payment
to certain other indebtedness of Consumers, as described herein. Upon an event
of default under the Declaration (as defined herein), the holders of the
Preferred Securities will have a preference over the holders of the Common
Securities with respect to payments in respect of distributions and payments
upon liquidation, redemption and otherwise.
(continued on next page)
SEE "RISK FACTORS" COMMENCING ON PAGE 5 OF THIS PROSPECTUS FOR CERTAIN
INFORMATION RELEVANT TO AN INVESTMENT IN THE PREFERRED SECURITIES, INCLUDING THE
PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF DISTRIBUTIONS ON THE
PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES OF SUCH DEFERRAL.
An application will be filed to list the Preferred Securities on the New
York Stock Exchange, Inc. (the "New York Stock Exchange"). If such application
is approved, trading of the Preferred Securities on the New York Stock Exchange
is expected to commence within a 30-day period after the initial delivery of the
Preferred Securities. See "Underwriting."
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.
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INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) COMMISSION(2) TRUST(3)(4)
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Per Preferred Security...................... $ (3) $
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Total....................................... $ (3) $
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(1) Plus accrued distributions, if any, from , 1995.
(2) Consumers and the Trust have agreed to indemnify the several Underwriters
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested in Subordinated Notes, Consumers has agreed to
pay to the Underwriters as compensation for their arranging the investment
therein of such proceeds, $ per Preferred Security (or $ in the
aggregate); provided, that such compensation for sales of 10,000 or more
Preferred Securities to a single purchaser will be per Preferred
Security. Therefore, to the extent of such sales, the actual amount of
Underwriters' compensation will be less than the aggregate amount specified
in the preceding sentence. See "Underwriting."
(4) Expenses of the offering which are payable by Consumers are estimated to be
$ .
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The Preferred Securities offered hereby are offered severally by the
Underwriters, as specified herein, subject to receipt and acceptance by them and
subject to their right to reject any order in whole or in part. It is expected
that delivery of the Preferred Securities will be made only in book-entry form
through the facilities of The Depository Trust Company on or about ,
1995.
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MERRILL LYNCH & CO.
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
FIRST OF MICHIGAN CORPORATION
RONEY & CO.
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The date of this Prospectus is , 1995.
(SM) "TRUST ORIGINATED PREFERRED SECURITIES" AND "TOPRS" ARE SERVICE MARKS OF
MERRILL LYNCH & CO., INC.
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(continued from previous page)
Holders of the Preferred Securities are entitled to receive cumulative cash
distributions at an annual rate of % of the liquidation amount of $25 per
Preferred Security, accruing from the date of original issuance and payable
quarterly in arrears on December 31, March 31, June 30 and September 30 of each
year commencing December 31, 1995 ("distributions"). The payment of
distributions out of moneys held by the Trust, and payments on liquidation of
the Trust or the redemption of Preferred Securities, as set forth below, are
guaranteed by Consumers (the "Preferred Securities Guarantee") to the extent the
Trust has funds available therefor as described under "Description of the
Preferred Securities Guarantee." The obligations of Consumers under the
Preferred Securities Guarantee are subordinate and junior in right of payment to
all other liabilities of Consumers and will rank pari passu with the most senior
preferred stock issued by Consumers. The obligations of Consumers under the
Subordinated Notes are subordinate and junior in right of payment to all present
and future Senior Indebtedness (as defined herein) of Consumers. The Senior
Indebtedness of Consumers aggregated approximately $2,456 million at June 30,
1995.
The distribution rate and the distribution and other payment dates for the
Preferred Securities will correspond to the interest rate and interest and other
payment dates on the Subordinated Notes, which will be the sole assets of the
Trust. As a result, if principal or interest is not paid on the Subordinated
Notes, no amounts will be paid on the Preferred Securities. If Consumers does
not make principal or interest payments on the Subordinated Notes, the Trust
will not have sufficient funds to make distributions on the Preferred
Securities, in which event the Preferred Securities Guarantee will not apply to
such distributions until the Trust has sufficient funds available therefor.
Consumers has the right to defer payments of interest on the Subordinated
Notes by extending the interest payment period on the Subordinated Notes, at any
time, for up to 20 consecutive quarters (each, an "Extension Period"). If
interest payments are so deferred, distributions on the Trust Securities will
also be deferred. Despite such deferral, distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at an annual
rate of % per annum, compounded quarterly, and during any Extension Period,
holders of Preferred Securities will be required to include deferred interest
income in their gross income for United States federal income tax purposes in
advance of receipt of the cash interest payments attributable to such deferred
income. There could be multiple Extension Periods of varying lengths throughout
the term of the Subordinated Notes. See "Description of the Subordinated Notes
- -- Option to Extend Interest Payment Period," "Risk Factors -- Option to Extend
Interest Payment Period" and "Certain Federal United States Income Tax
Consequences -- Original Issue Discount, Premium and Market Discount." In the
event of any such deferral, the holders of the Preferred Securities will not
have the right to appoint a special representative or trustee or otherwise act
to protect their interests.
The Subordinated Notes are redeemable by Consumers (in whole or in part)
from time to time, on or after December 31, 2000 or at any time in certain
circumstances upon the occurrence of a Special Event (as defined herein). If
Consumers redeems Subordinated Notes, the Trust must redeem Trust Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Subordinated Notes so redeemed at $25 per Trust Security plus accrued and
unpaid distributions thereon (the "Redemption Price") to the date fixed for
redemption. See "Description of the Preferred Securities -- Mandatory
Redemption." The Preferred Securities will be redeemed upon maturity of the
Subordinated Notes. The Subordinated Notes mature on December 31, 2035. In
addition, upon the occurrence of a Special Event arising from a change in law or
a change in legal interpretation, unless the Subordinated Notes are redeemed in
the limited circumstances described below, the Trust shall be terminated with
the result that the Subordinated Notes will be distributed to the holders of the
Preferred Securities, on a pro rata basis, in lieu of any cash distribution. In
the case of the occurrence of a Special Event, Consumers will have the right in
certain circumstances to redeem the Subordinated Notes, which would result in
the redemption by the Trust of the Trust Securities in the same amount on a pro
rata basis. If the Subordinated Notes are distributed to the holders of the
Preferred Securities, Consumers will use its best efforts to have the
Subordinated Notes listed on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed. See "Description of the
Preferred Securities -- Special Event Redemption or Distribution" and
"Description of the Subordinated Notes."
In the event of the voluntary or involuntary dissolution, winding-up or
termination of the Trust, the holders of the Preferred Securities will be
entitled to receive, for each Preferred Security, a liquidation amount of $25
plus accrued and unpaid distributions thereon (including interest thereon) to
the date of payment, unless in connection with such dissolution, winding-up or
termination the Subordinated Notes are distributed to the holders of the
Preferred Securities. See "Description of the Preferred Securities --
Liquidation Distribution Upon Dissolution."
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY 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.
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AVAILABLE INFORMATION
Consumers and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a combined registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Subordinated Notes, the Preferred
Securities and the Preferred Securities Guarantee offered hereby. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is hereby made
to the Registration Statement. Statements or extracts presented in this
Prospectus from financial statements, contracts, agreements or other documents
included as exhibits to the Registration Statement are not necessarily complete.
With respect to each such financial statement, contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is hereby
made to the exhibit for a more complete description of the matter involved.
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, information statements and other information with the
Commission. Such reports, information statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at
the Commission's Regional Offices at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, and Seven World Trade Center, 13th Floor,
New York, New York 10048. Copies of such material can also be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. Such reports, information
statements and other information concerning Consumers may also be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, the securities exchange on which certain of Consumers' securities are
listed.
No separate financial statements of the Trust are included herein.
Consumers and the Trust do not consider that such financial statements would be
material to holders of the Preferred Securities because the Trust is a newly
formed special purpose entity, has no operating history and no independent
operations and is not engaged in, and does not propose to engage in, any
activity other than as set forth below. See "Consumers Power Company Financing
I."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Consumers with the Commission (File No.
1-5611) are incorporated in this Prospectus by reference and made a part hereof:
(i) Consumers' Annual Report on Form 10-K for the year ended December
31, 1994;
(ii) Consumers' Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1995 and June 30, 1995; and
(iii) Consumers' Current Reports on Form 8-K dated January 10, 1995,
dated February 2, 1995 and dated September 11, 1995.
All documents subsequently filed by Consumers pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act shall be deemed to be incorporated into
this Prospectus by reference and to be a part hereof from the respective dates
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference in this Prospectus shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained in this Prospectus or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this
Prospectus 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 will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents that have been or
may be incorporated in this Prospectus by reference, other than certain exhibits
to such documents. Such requests should be directed to Consumers Power Company
at its principal executive offices located at 212 West Michigan Avenue, Jackson,
Michigan 49201 Attention: Senior Vice President and Chief Financial Officer;
telephone: (517) 788-0550.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus.
Preferred Securities Offered. 4,000,000 % Trust Originated Preferred
Securities evidencing preferred undivided beneficial interests in the assets of
the Trust are offered hereby. Holders of the Preferred Securities are entitled
to receive cumulative cash distributions at an annual rate of % of the
liquidation amount of $25 per Preferred Security, accruing from the date of
original issuance and payable quarterly in arrears on December 31, March 31,
June 30 and September 30 of each year commencing on December 31, 1995. The
distribution rate and the distribution and other payment dates for the Preferred
Securities will correspond to the interest rate and interest and other payment
dates on the Subordinated Notes, which will be the sole assets of the Trust. As
a result, if principal or interest is not paid on the Subordinated Notes, no
amounts will be paid on the Preferred Securities. See "Description of the
Preferred Securities."
Subordinated Notes. The Trust will invest the proceeds from the issuance of
the Preferred Securities and Common Securities in an equivalent amount of %
Subordinated Deferrable Interest Notes due 2035 of Consumers. The Subordinated
Notes will be subordinate and junior in right of payment to all Senior
Indebtedness of Consumers. See "Description of Subordinated Notes --
Subordination."
Preferred Securities Guarantee. Payment of distributions out of moneys held
by the Trust, and payments on liquidation of the Trust or the redemption of
Preferred Securities are guaranteed by Consumers to the extent the Trust has
funds available therefor. If Consumers does not make principal or interest
payments on the Subordinated Notes, the Trust will not have sufficient funds to
make distributions on the Preferred Securities, in which event the Preferred
Securities Guarantee will not apply to such distributions until the Trust has
sufficient funds available therefor. See "Description of Preferred Securities
Guarantee" and "Effect of Obligations under the Subordinated Notes and the
Preferred Securities Guarantee" herein. The obligations of Consumers under the
Preferred Securities Guarantee are subordinate and junior in right of payment to
all other liabilities of Consumers and will rank pari passu with the most senior
preferred stock issued by Consumers. See "Risk Factors -- Ranking of Preferred
Securities Guarantee and Subordinated Notes" and "Description of the Preferred
Securities Guarantee."
Interest Deferral. Consumers has the right to defer payments of interest on
the Subordinated Notes by extending the interest payment period on the
Subordinated Notes, at any time, for up to 20 consecutive quarters. If interest
payments on the Subordinated Notes are so deferred, distributions on the
Preferred Securities will also be deferred. During any deferral, distributions
will continue to accrue with interest thereon (to the extent permitted by law)
as described herein. There could be multiple Extension Periods of varying
lengths throughout the term of the Subordinated Notes. During an Extension
Period, holders of Preferred Securities will be required to include deferred
interest income in their gross income in advance of receipt of the cash interest
payments attributable thereto. See "Description of the Subordinated Notes --
Option to Extend Interest Payment Period" and "Certain United States Federal
Income Tax Consequences -- Original Issue Discount, Premium and Market
Discount."
Redemption. The Subordinated Notes are redeemable by Consumers (in whole or
in part) from time to time, on or after December 31, 2000, or at any time in
certain circumstances upon the occurrence of a Special Event. If the
Subordinated Notes are redeemed, the Trust must redeem Trust Securities having
an aggregate liquidation amount equal to the aggregate principal amount of
Subordinated Notes so redeemed. The Preferred Securities will be redeemed upon
maturity of the Subordinated Notes. See "Description of the Preferred Securities
- -- Mandatory Redemption."
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RISK FACTORS
Prospective purchasers of Preferred Securities should carefully review the
information contained or incorporated by reference elsewhere in this Prospectus
and should particularly consider the following matters:
RANKING OF PREFERRED SECURITIES GUARANTEE AND SUBORDINATED NOTES
Consumers' obligations under the Preferred Securities Guarantee are
subordinate and junior in right of payment to all liabilities of Consumers and
pari passu with the most senior preferred stock now or hereafter issued by
Consumers and with any guarantee now or hereafter entered into by Consumers in
respect of any preferred stock of any affiliate of Consumers. The obligations of
Consumers under the Subordinated Notes are subordinate and junior in right of
payment to all present and future Senior Indebtedness (as defined herein) of
Consumers. No payment of principal of (including redemption payments, if any),
premium, if any, or interest on, the Subordinated Notes may be made if (a) any
Senior Indebtedness of Consumers is not paid when due, or (b) the maturity of
any Senior Indebtedness has been accelerated because of a default. At June 30,
1995, Senior Indebtedness of Consumers aggregated approximately $2,456 million.
There are no terms in the Preferred Securities, the Subordinated Notes or the
Preferred Securities Guarantee that limit Consumers' ability to incur additional
indebtedness, including indebtedness that ranks senior to the Subordinated Notes
or the Preferred Securities Guarantee. See "Description of the Preferred
Securities Guarantee" and "Description of the Subordinated Notes --
Subordination."
RIGHTS UNDER THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee guarantees to the holders of the
Preferred Securities the payment of (i) any accrued and unpaid distributions
which are required to be paid on the Preferred Securities, to the extent the
Trust shall have funds available therefor, (ii) the Redemption Price, including
all accrued and unpaid distributions, to the date of the redemption, to the
extent the Trust has funds available therefor, with respect to any Preferred
Securities called for redemption by the Trust and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust (other than in
connection with the distribution of Subordinated Notes to the holders of
Preferred Securities) the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid distributions on the Preferred Securities to the date
of payment therefor and (b) the amount of assets of the Trust remaining
available for distribution to holders of Preferred Securities in liquidation of
the Trust. The holders of a majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee (as
defined herein) or to direct the exercise of any trust or power conferred upon
the Preferred Guarantee Trustee under the Preferred Securities Guarantee. If the
Preferred Guarantee Trustee fails to enforce the Preferred Securities Guarantee,
any holder of Preferred Securities may institute a legal proceeding directly
against Consumers to enforce the Preferred Guarantee Trustee's rights under the
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Trust, the Preferred Guarantee Trustee or any other person or
entity. If Consumers were to default in its obligation to pay amounts payable on
the Subordinated Notes, the Trust would lack available funds for the payment of
distributions or amounts payable on redemption of the Preferred Securities or
otherwise, and in such event holders of the Preferred Securities would not be
able to rely upon the Preferred Securities Guarantee for payment of such
amounts. Instead, holders of the Preferred Securities would rely on the
enforcement by the Property Trustee (as defined herein) of its rights as
registered holder of the Subordinated Notes against Consumers, pursuant to the
terms of the Subordinated Notes. See "Description of the Preferred Securities
Guarantee -- Status of the Preferred Securities Guarantee" and "Description of
the Subordinated Notes -- Indenture Events of Default." The Declaration (as
defined herein) provides that each holder of Preferred Securities by acceptance
thereof agrees to the provisions of the Preferred Securities Guarantee and the
Indenture (as defined herein).
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Declaration Event of Default (as defined herein) occurs and is
continuing, then the holders of Preferred Securities would rely on the
enforcement by the Property Trustee of its rights as a holder of the
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Subordinated Notes against Consumers. In addition, the holders of a majority in
aggregate liquidation amount of the Preferred Securities will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under the Declaration, including the
right to direct the Property Trustee to exercise the remedies available to it as
a holder of the Subordinated Notes. If the Property Trustee fails to enforce its
rights under the Subordinated Notes to the fullest extent permitted by law, a
holder of Preferred Securities may institute a legal proceeding directly against
Consumers to enforce the Property Trustee's rights under the Subordinated Notes
without first instituting any legal proceeding against the Property Trustee or
any other person or entity, including the Trust.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Consumers has the right under the Indenture to defer payments of interest
on the Subordinated Notes by extending the interest payment period at any time,
and from time to time, on the Subordinated Notes. As a consequence of such an
extension, quarterly distributions on the Preferred Securities would be deferred
(but despite such deferral would continue to accrue with interest thereon
compounded quarterly) by the Trust during any such extended interest payment
period. Such right to extend the interest payment period for the Subordinated
Notes is limited to a period not exceeding 20 consecutive quarters for any such
extension. In the event that Consumers exercises this right to defer payments of
interest, then (a) Consumers shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or make a liquidation payment
with respect to, any of its capital stock, (b) Consumers shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by Consumers which rank
pari passu with or junior to the Subordinated Notes and (c) Consumers shall not
make any guarantee payments with respect to the foregoing (other than pursuant
to the Preferred Securities Guarantee), provided, however, Consumers may declare
and pay a stock dividend where the dividends stock is the same stock as that on
which the dividend is being paid. Prior to the termination of any such Extension
Period, Consumers may further defer payments of interest by further extending
the interest payment period, provided that such Extension Period, together with
all such previous and further extensions thereof, may not exceed 20 consecutive
quarters or extend beyond the maturity of the Subordinated Notes. Upon the
termination of any Extension Period and the payment of all amounts then due,
Consumers may select a new Extension Period, as if no Extension Period had
previously been declared, subject to the above requirements. See "Description of
the Preferred Securities -- Distributions" and "Description of the Subordinated
Notes -- Option to Extend Interest Payment Period."
Because Consumers has the right to extend the interest payment period for
the Subordinated Notes, the Subordinated Notes will be treated as having been
issued with original issue discount ("OID") for United States federal income tax
purposes. Should Consumers exercise its right to defer payments of interest by
extending the interest payment period, each holder of Preferred Securities will
continue to accrue income (as OID) for United States federal income tax purposes
in respect of the deferred interest allocable to its Preferred Securities. As a
result, holders of Preferred Securities will recognize income for United States
federal income tax purposes in advance of the receipt of cash, regardless of the
holders' regular method of accounting, and will not receive cash from the Trust
related to such income if such holder disposes of its Preferred Securities prior
to the record date for the date on which distributions of such amounts are made.
Consumers has no current intention of exercising its right to defer payments of
interest by extending the interest payment period on the Subordinated Notes.
However, should Consumers determine to exercise such right in the future, the
market price of the Preferred Securities is likely to be affected. A holder that
disposes of its Preferred Securities during an Extension Period, therefore,
might not receive the same return on its investment as a holder that continues
to hold its Preferred Securities. In addition, as a result of the existence of
Consumers' right to defer interest payments, the market price of the Preferred
Securities (which represent an undivided beneficial interest in the Subordinated
Notes) may be more volatile than other securities on which OID accrues that are
not subject to such rights. In addition, if the issue price of the Subordinated
Notes at the time of the issuance of the Preferred Securities is less than their
stated principal amount, the difference will be additional OID, a pro rata share
of which will be includible in the gross income of the holders of the
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Preferred Securities over the term of the Preferred Securities. See "Certain
United States Federal Income Tax Consequences -- Original Issue Discount,
Premium and Market Discount."
SPECIAL EVENT DISTRIBUTION
In the case of a Special Event, in certain circumstances Consumers shall
have the right to redeem the Subordinated Notes, in whole or in part, in which
event the Trust will redeem the Trust Securities on a pro rata basis to the same
extent as the Subordinated Notes are redeemed. Otherwise, upon the occurrence of
a Special Event, the Trust will be terminated, with the result that the
Subordinated Notes would be distributed to the holders of the Trust Securities
in connection with the liquidation of the Trust. See "Description of the
Preferred Securities -- Special Event Redemption or Distribution" and "Certain
United States Federal Income Tax Consequences."
There can be no assurance as to the market prices at such time for the
Preferred Securities or the Subordinated Notes that may be distributed in
exchange for Preferred Securities if a termination or liquidation of the Trust
were to occur. Accordingly, the Preferred Securities that an investor may
purchase, or the Subordinated Notes that the investor may receive on termination
and liquidation of the Trust, may trade at a discount to the price that the
investor paid to purchase the Preferred Securities offered hereby. Because
holders of Preferred Securities may receive Subordinated Notes upon the
occurrence of a Special Event, prospective purchasers of Preferred Securities
are also making an investment decision with regard to the Subordinated Notes and
should carefully review all the information regarding the Subordinated Notes
contained herein. See "Description of the Preferred Securities -- Special Event
Redemption or Distribution" and "Description of the Subordinated Notes."
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights and will
not be entitled to vote to appoint, remove or replace, or to increase or
decrease the number of, Consumers Trustees (as defined herein), which voting
rights are vested exclusively in Consumers as the holder of the Common
Securities. See "Description of the Preferred Securities -- Voting Rights."
TRADING PRICE OF PREFERRED SECURITIES
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying
Subordinated Notes. A holder who disposes of his Preferred Securities between
record dates for payments of distributions thereon will be required to include
accrued but unpaid interest on the Subordinated Notes through the date of
disposition in income as ordinary income (i.e., OID), and to add such amount to
its adjusted tax basis in its pro rata share of the underlying Subordinated
Notes deemed disposed of. To the extent the selling price is less than the
holder's adjusted tax basis (which will include, in the form of OID, all accrued
but unpaid interest), a holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes. See "Certain United States
Federal Income Tax Consequences -- Original Issue Discount, Premium and Market
Discount" and "-- Sale of Preferred Securities."
CONSUMERS POWER COMPANY
Consumers is a public utility serving almost six million of Michigan's nine
million residents in 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 62 of the 68
counties in the Lower Peninsula of Michigan. The gas operations include the
production, purchase, storage, transmission and distribution of gas serving 45
of the 68 counties in the Lower Peninsula of Michigan. Consumers' principal
executive offices are located at 212 West Michigan Avenue, Jackson, Michigan
49201, telephone (517) 788-0550.
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CONSUMERS POWER COMPANY FINANCING I
The Trust is a statutory business trust formed under Delaware law pursuant
to the filing of a certificate of trust with the Delaware Secretary of State on
October 30, 1995. The Trust's business is defined in a Declaration of Trust,
executed by Consumers, as sponsor (the "Sponsor"), and the Consumers Trustees.
The Declaration of Trust will be amended and restated in its entirety (as so
amended and restated, the "Declaration") substantially in the form filed as an
exhibit to the Registration Statement of which this Prospectus forms a part. The
Declaration will be qualified as an indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). Upon issuance of the Preferred
Securities, the purchasers thereof will own all of the Preferred Securities.
Consumers will acquire all of the Common Securities in an aggregate liquidation
amount equal to 3% of the total capital of the Trust. The Trust exists for the
exclusive purposes of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of the Trust, (ii) investing the gross
proceeds of the Trust Securities in the Subordinated Notes and (iii) engaging in
only those other activities necessary appropriate, convenient or incidental
thereto. The Trust has a term of approximately 45 years, but may terminate
earlier as provided in the Declaration.
The Trust's business and affairs will be conducted by the trustees (the
"Consumers Trustees") appointed by Consumers, as holder of the Common
Securities. The duties and obligations of the Consumers Trustees shall be
governed by the Declaration. Pursuant to the Declaration, the number of
Consumers Trustees will initially be five. Three of the Consumers Trustees (the
"Regular Trustees") will be persons who are employees or officers of, or
affiliated with, Consumers. The fourth trustee will be a financial institution
unaffiliated with Consumers which maintains a principal place of business in the
State of Delaware (the "Delaware Trustee"). The Bank of New York (Delaware),
will act as the Delaware Trustee until removed or replaced by the holder of the
Common Securities. The fifth trustee will serve as property trustee under the
Declaration and as indenture trustee for purposes of the Trust Indenture Act
(the "Property Trustee"). The Bank of New York will act as the Property Trustee
until removed or replaced by the holder of the Common Securities. The Bank of
New York will also act as indenture trustee under the Preferred Securities
Guarantee (the "Preferred Guarantee Trustee"). See "Description of the Preferred
Securities Guarantee."
The Property Trustee will hold title to the Subordinated Notes for the
benefit of the holders of the Trust Securities and will have the power to
exercise all rights, powers and privileges under the Indenture (as defined
herein) as the holder of the Subordinated Notes. In addition, the Property
Trustee will maintain exclusive control of a segregated non-interest bearing
bank account (the "Property Account") to hold all payments made in respect of
the Subordinated Notes for the benefit of the holders of the Trust Securities.
The Property Trustee will make payments of distributions and payments on
liquidation, redemption and otherwise to the holders of the Trust Securities out
of funds from the Property Account. The Preferred Guarantee Trustee will hold
the Preferred Securities Guarantee for the benefit of the holders of the
Preferred Securities. Consumers, as the holder of all the Common Securities,
will have the right to appoint, remove or replace any Consumers Trustee and to
increase the number of Consumers Trustees, provided that the number of Consumers
Trustees shall be at least five, a majority of which shall be Regular Trustees.
Consumers will pay all fees and expenses related to the Trust, the offering of
the Trust Securities and the issuance of the Subordinated Notes. See
"Description of the Subordinated Notes -- Miscellaneous."
The rights of the holders of the Preferred Securities, including rights to
information and voting rights, are as set forth in the Declaration, the Delaware
Business Trust Act, as amended (the "Trust Act"), and the Trust Indenture Act.
See "Description of the Preferred Securities."
The principal place of business of the Trust shall be c/o Consumers Power
Company, 212 West Michigan Avenue, Jackson, Michigan 49201 (telephone number
(517) 788-0550).
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SELECTED FINANCIAL INFORMATION OF CONSUMERS POWER COMPANY
The following information is qualified in its entirety by the information
appearing elsewhere in this Prospectus and by the information and financial
statements incorporated in this Prospectus by reference.
TWELVE MONTHS
ENDED JUNE YEAR ENDED DECEMBER 31,
30, ----------------------------------------------
1995 1994 1993 1992 1991 1990
------------- ------ ------ ------ ------ ------
(UNAUDITED)
Operating Revenue (in millions).......... $ 3,331 $3,356 $3,243 $2,978 $2,908 $2,968
Net Income (Loss) (in millions)(a)....... $ 235 $ 226 $ 198 $ (244) $ (235) $ (382)
Net Income (Loss) after Preferred
Dividends (in millions)................ $ 207 $ 202 $ 187 $ (255) $ (260) $ (393)
Ratios of Earnings to:
Fixed Charges.......................... 2.86 2.94 2.52 (b) (c) (d)
Fixed Charges & Preferred Dividends.... 2.29 2.40 2.31 (e) (f) (g)
- -------------------------
(a) 1991 excludes an extraordinary after-tax loss of $14 million.
(b) For the year ended December 31, 1992, fixed charges exceeded earnings by
$360 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 partially offset by $(15) million for potential customer refunds
and other reserves related to 1992 but recorded in 1991. The ratio of
earnings to fixed charges would have been 1.81 excluding these amounts.
(c) For the year ended December 31, 1991, fixed charges exceeded earnings by
$309 million. Earnings as defined include $398 million of pre-tax
write-downs and reserve amounts related to the abandoned Midland project 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
would have been 1.40 excluding these amounts.
(d) For the year ended December 31, 1990, fixed charges exceeded earnings by
$228 million. Earnings as defined include $716 million of pre-tax
write-downs and reserve amounts related to the abandoned Midland project and
$(29) million for potential customer refunds and other reserves related to
1990 but recorded in 1991. The ratio of earnings to fixed charges would have
been 2.46 excluding these amounts.
(e) For the year ended December 31, 1992, fixed charges and preferred dividends
exceeded earnings by $377 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 partially offset by $(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 1.65 excluding these amounts.
(f) For the year ended December 31, 1991, fixed charges and preferred dividends
exceeded earnings by $324 million. Earnings as defined include $398 million
of pre-tax write-downs and reserve amounts related to the abandoned Midland
project 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 1.34 excluding these
amounts.
(g) For the year ended December 31, 1990, fixed charges and preferred dividends
exceeded earnings by $245 million. Earnings as defined include $716 million
of pre-tax write-downs and reserve amounts related to the abandoned Midland
project 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 2.33 excluding these amounts.
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CAPITALIZATION OF CONSUMERS POWER COMPANY
The following table sets forth the unaudited consolidated capitalization of
Consumers at June 30, 1995, and as adjusted to reflect the sale of the Preferred
Securities offered hereby and the application of the estimated net proceeds from
such sale. See "Use of Proceeds." The table should be read in conjunction with
Consumers' consolidated financial statements and notes thereto included in the
documents incorporated by reference herein. See "Incorporation of Certain
Documents by Reference."
AT JUNE 30, 1995
----------------
AS
ACTUAL ADJUSTED
------ ------
IN MILLIONS
(UNAUDITED)
Short-term debt (includes notes payable and current portion of long-term
debt and capital leases).................................................. $ 358 $ 258
====== ======
Non-current portion of capital leases....................................... $ 109 $ 109
Long-term debt (excluding current maturities)............................... 1,955 1,955
Company-obligated mandatorily redeemable preferred securities of Consumers
Power Company Financing I(1).............................................. -- 100
Preferred Stock with no mandatory redemption................................ 356 356
Common stockholders' equity................................................. 1,487 1,487
------ ------
Total stockholders' equity............................................. 1,843 1,943
------ ------
Total Capitalization........................................................ $3,907 $3,907
====== ======
- -------------------------
(1) As described in this Prospectus, the sole assets of the Trust will be the
% Subordinated Deferrable Interest Notes due 2035 of Consumers with a
principal amount of $103,092,784, and upon redemption of such debt, the
Preferred Securities will be mandatorily redeemable.
ACCOUNTING TREATMENT
The financial statements of the Trust will be consolidated with Consumers'
financial statements, with the Preferred Securities shown on Consumers'
consolidated financial statements as mandatorily redeemable preferred
securities. Note disclosures will discuss the Consumers' Guarantee of Consumers
Power Company Financing I Preferred Securities.
USE OF PROCEEDS
The proceeds of the sale of the Preferred Securities will be invested by
the Trust in the Subordinated Notes of Consumers. Consumers will use the net
proceeds from the sale of such Subordinated Notes to provide a portion of the
funds required for Consumers' capital expenditures (acquiring property,
constructing, completing, extending, and improving facilities) and for general
corporate purposes. Initially, such proceeds will be used to repay a portion of
Consumers' short-term debt, which had an aggregate amount outstanding of
approximately $358 million at June 30, 1995. The short-term debt bears interest
at rates ranging from to .
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DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Property Trustee will act as the indenture trustee for
purposes of compliance with the provisions of the Trust Indenture Act. The terms
of the Preferred Securities will include those stated in the Declaration and
those made part of the Declaration by the Trust Indenture Act. The following
summary of the principal terms and provisions of the Preferred Securities does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the Declaration, a copy of which is filed as an exhibit to the
Registration Statement, of which this Prospectus is a part, the Trust Act and
the Trust Indenture Act.
GENERAL
The Declaration authorizes the Regular Trustees, on behalf of the Trust, to
issue the Preferred Securities, which represent preferred undivided beneficial
interests in the assets of the Trust, and the Common Securities, which represent
common undivided beneficial interests in the assets of the Trust. All of the
Common Securities will be owned by Consumers. The Common Securities rank pari
passu, and payments will be made thereon on a pro rata basis, with the Preferred
Securities, except that upon the occurrence and during the continuation of a
Declaration Event of Default, the rights of the holders of the Common Securities
to receive payment of periodic distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights to payment of the
holders of the Preferred Securities. The Declaration does not permit the
incurrence of any indebtedness by the Trust or the issuance by the Trust of any
securities other than the Trust Securities. Pursuant to the Declaration, the
Property Trustee will hold legal title to the Subordinated Notes for the Trust
and for the benefit of the holders of the Trust Securities. The payment of
distributions out of money held by the Trust, and payments upon redemption of
the Preferred Securities or liquidation of the Trust, are guaranteed by
Consumers to the extent described under "Description of the Preferred Securities
Guarantee." The Preferred Guarantee Trustee will hold the Preferred Securities
Guarantee for the benefit of the holders of the Preferred Securities. The
Preferred Securities Guarantee does not cover payment of distributions on the
Preferred Securities when the Trust does not have sufficient available funds in
the Property Account to make such distributions.
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per annum
of % of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears will bear interest at such rate per annum (to the
extent permitted by applicable law). The term "distributions" as used herein
includes any such interest payable unless otherwise stated.
Distributions on the Preferred Securities will be cumulative, will accrue
from , 1995 and will be payable quarterly in arrears on December 31,
March 31, June 30 and September 30 of each year to the holders of record on the
applicable record date, commencing December 31, 1995 when, as and if available
for payment by the Property Trustee, except as otherwise described below. The
amount of distributions payable for any full quarterly period will be computed
on the basis of a 360-day year of twelve 30-day months, and for any period
shorter than a full quarter, on the basis of the actual number of days elapsed
in such a 90-day quarter.
Consumers has the right under the Indenture to defer payments of interest
on the Subordinated Notes by extending the interest payment period from time to
time on the Subordinated Notes which, if exercised, would defer quarterly
distributions on the Preferred Securities (though such distributions would
continue to accrue interest since interest would continue to accrue on the
Subordinated Notes) during any such extended interest payment period. In the
event that Consumers exercises this right, then (a) Consumers shall not declare
or pay any dividend on, make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of its capital
stock, (b) Consumers shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by Consumers which rank pari passu with or junior
to the Subordinated Notes, and (c) Consumers shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities
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Guarantee), provided, however, Consumers may declare and pay a stock dividend
where the dividend stock is the same stock as that on which the dividend is
being paid. Prior to the termination of any such Extension Period, Consumers may
further extend the interest payment period, provided that such Extension Period,
together with all such previous and further extensions thereof, may not exceed
20 consecutive quarters or extend beyond the maturity of the Subordinated Notes.
Upon the termination of any Extension Period and the payment of all amounts then
due, Consumers may select a new Extension Period as if no Extension Period had
previously been declared, subject to the above requirements. See "Description of
the Subordinated Notes -- Interest" and "-- Option to Extend Interest Payment
Period." If distributions are deferred, the deferred distributions and accrued
interest thereon shall be paid to holders of record of the Preferred Securities,
if funds are available therefor, as they appear on the books and records of the
Trust on the record date next following the termination of such Extension
Period.
Distributions on the Preferred Securities must be paid on the dates payable
to the extent that the Trust has funds available for the payment of such
distributions in the Property Account. The Trust's funds available for
distribution to the holders of the Preferred Securities will be limited to
payments received under the Subordinated Notes. See "Description of the
Subordinated Notes." The payment of distributions out of moneys held by the
Trust is guaranteed by Consumers to the extent set forth under "Description of
the Preferred Securities Guarantee."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which, as long as the Preferred Securities remain in book-entry
only form, will be one Business Day (as defined herein) prior to the relevant
payment dates, which payment dates correspond to the interest payment dates on
the Subordinated Notes. Such distributions will be paid through the Property
Trustee, who will hold amounts received in respect of the Subordinated Notes in
the Property Account for the benefit of the holders of the Trust Securities.
Subject to any applicable laws and regulations and the provisions of the
Declaration, each such payment will be made as described under "-- Book-Entry
Only Issuance -- The Depository Trust Company" below. In the event the Preferred
Securities shall not continue to remain in book-entry only form, the Regular
Trustees shall have the right to select relevant record dates which shall be at
least one Business Day, but less than 60 Business Days, prior to the relevant
payment dates. In the event that any date on which distributions are to be made
on the Preferred Securities is not a Business Day, then payment of the
distributions payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. A "Business
Day" shall mean any day other than a day on which banking institutions in
Delaware or New York, New York are authorized or required by law to close.
MANDATORY REDEMPTION
The Subordinated Notes will mature on December 31, 2035 and may be
redeemed, in whole or in part, at any time on or after December 31, 2000, or at
any time in certain circumstances upon the occurrence of a Special Event. Upon
the repayment of the Subordinated Notes, whether at maturity or upon
acceleration, redemption or otherwise, the proceeds from such repayment or
payment shall simultaneously be applied to redeem Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Notes so repaid or redeemed at the Redemption Price; provided that,
except in the case of payments upon maturity, holders of Trust Securities shall
be given not less than 30 nor more than 60 days' notice of such redemption. See
"Description of the Subordinated Notes." In the event that fewer than all of the
outstanding Preferred Securities are to be redeemed, the Preferred Securities
will be redeemed pro rata as described under "-- Book-Entry Only Issuance -- The
Depository Trust Company" below.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
"Tax Event" means that the Regular Trustees shall have received an opinion
from independent tax counsel experienced in such matters (a "Dissolution Tax
Opinion") to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
12
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thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment to, or change in, an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, which amendment or
change is enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of this Prospectus, there is more than an insubstantial risk
that (i) the Trust would be subject to United States federal income tax with
respect to interest accrued or received on the Subordinated Notes, (ii) interest
payable to the Trust on the Subordinated Notes would not be deductible in whole
or in part by Consumers for United States federal income tax purposes or (iii)
the Trust would be subject to more than a de minimis amount of other taxes,
duties or other governmental charges, which change or amendment becomes
effective on or after the date of this Prospectus.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion from independent counsel experienced in practice under the
Investment Company Act of 1940, as amended (the "1940 Act") to the effect that,
as a result of the occurrence of a change in law or regulation or a written
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" which is required to be registered under the 1940 Act.
If, at any time, a Tax Event or an Investment Company Event (each, as
defined above, a "Special Event") shall occur and be continuing, the Trust
shall, except in the circumstances described below, be terminated with the
result that, after satisfaction of liabilities to creditors, Subordinated Notes
with an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accrued and unpaid distributions on, the
Trust Securities would be distributed to the holders of the Trust Securities, in
liquidation of such holders' interests in the Trust on a pro rata basis, within
90 days following the occurrence of such Special Event; provided, however, that
in the case of the occurrence of a Tax Event, as a condition of such termination
and distribution, the Regular Trustees shall have received a No Recognition
Opinion (as defined below); and, provided, further, that, if at the time there
is available to the Trust the opportunity to eliminate, within such 90-day
period, the Special Event by taking some ministerial action which has no adverse
effect on the Trust, Consumers or the holders of the Trust Securities, the Trust
will pursue such measure in lieu of dissolution.
Furthermore, (i) if a Tax Event has occurred and, (a) Consumers has
received a Redemption Tax Opinion or (b) the Regular Trustees shall have been
informed by independent tax counsel that a No Recognition Opinion cannot be
delivered, or (ii) if an Investment Company Event has occurred, then Consumers
shall have the right, upon not less than 30 nor more than 60 days' notice, to
redeem the Subordinated Notes in whole or in part for cash within 90 days
following the occurrence of such Tax Event or Investment Company Event, as the
case may be, and, following such redemption, Trust Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Subordinated
Notes so redeemed shall be redeemed by the Trust at the Redemption Price on a
pro rata basis; provided, however, that, if at the time there is available to
Consumers or the Trust the opportunity to eliminate, within such 90-day period,
such Tax Event or Investment Company Event by taking some ministerial action
which has no adverse effect on the Trust, Consumers or the holders of the Trust
Securities, Consumers or the Trust will pursue such measure in lieu of
redemption.
"No Recognition Opinion" means an opinion from independent tax counsel
experienced in such matters to the effect that the holders of the Trust
Securities will not recognize any gain or loss for United States federal income
tax purposes as a result of a dissolution of the Trust and the distribution of
the Subordinated Notes. "Redemption Tax Opinion" means an opinion from
independent tax counsel experienced in such matters to the effect that, as a
result of a Tax Event, there is more than an insubstantial risk that Consumers
would be precluded from deducting the interest on the Subordinated Notes for
United States income tax purposes even after the Subordinated Notes were
distributed to the holders of the Trust Securities.
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If Subordinated Notes are distributed to the holders of the Preferred
Securities, Consumers will use its best efforts to have the Subordinated Notes
listed on the New York Stock Exchange or on such other exchange, on which the
Preferred Securities are then listed.
After the date for any distribution of Subordinated Notes upon termination
of the Trust, (i) the Preferred Securities and Preferred Securities Guarantee
will no longer be deemed to be outstanding, (ii) the depositary or its nominee,
as the record holder of the Preferred Securities, will receive a registered
global certificate or certificates representing the Subordinated Notes to be
delivered upon such distribution and (iii) any certificates representing
Preferred Securities and Preferred Securities Guarantee not held by the
depositary or its nominee will be deemed to represent Subordinated Notes having
an aggregate principal amount equal to the aggregate stated liquidation amount
of, with an interest rate identical to the distribution rate of, and accrued and
unpaid interest equal to accrued and unpaid distributions on, such Preferred
Securities, until such certificates are presented to Consumers or its agent for
transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Notes that may be distributed in exchange for the
Preferred Securities if a termination and liquidation of the Trust were to
occur. Accordingly, the Preferred Securities that an investor may purchase, or
the Subordinated Notes that the investor may receive on termination and
liquidation of the Trust, may trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Preferred
Securities unless all accrued and unpaid distributions have been paid on all
Trust Securities for all quarterly distribution periods terminating on or prior
to the date of redemption.
If the Trust gives a notice of redemption in respect of Preferred
Securities (which notice will be irrevocable), then, by 12:00 noon, New York
City time, on the redemption date, provided that Consumers has paid to the
Property Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Subordinated Notes, the Trust will irrevocably
deposit with the depositary funds sufficient to pay the applicable Redemption
Price and will give the depositary irrevocable instructions and authority to pay
the Redemption Price to the holders of the Preferred Securities. See "--
Book-Entry Only Issuance -- The Depository Trust Company." If notice of
redemption shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit,
distributions will cease to accrue and all rights of holders of such Preferred
Securities so called for redemption will cease, except the right of the holders
of such Preferred Securities to receive the Redemption Price, but without
interest on such Redemption Price. In the event that any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day. In
the event that payment of the Redemption Price in respect of Preferred
Securities is improperly withheld or refused and not paid either by the Trust or
by Consumers pursuant to the Preferred Securities Guarantee, distributions on
such Preferred Securities will continue to accrue, from the original redemption
date to the actual date of payment, in which case the actual payment date will
be considered the date fixed for redemption for purposes of calculating the
Redemption Price.
In the event that fewer than all of the outstanding Preferred Securities
are to be redeemed, the Preferred Securities will be redeemed pro rata as
described under "-- Book-Entry Only Issuance -- The Depository Trust Company"
below.
Subject to the foregoing and to applicable law (including, without
limitation, United States federal securities laws), Consumers or its affiliates
may, at any time and from time to time, purchase outstanding Preferred
Securities by tender, in the open market or by private agreement.
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LIQUIDATION DISTRIBUTION UPON TERMINATION
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the holders of the Preferred Securities at that time
will be entitled to receive out of the assets of the Trust, after satisfaction
of liabilities to creditors, distributions in an amount equal to the aggregate
of the stated liquidation amount of $25 per Preferred Security plus accrued and
unpaid distributions thereon to the date of payment (the "Liquidation
Distribution"), unless, in connection with such dissolution, winding-up or
termination, Subordinated Notes in an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid distributions on, the Preferred Securities have been distributed on a pro
rata basis to the holders of Preferred Securities in exchange for such Preferred
Securities.
If, upon any such dissolution, winding-up or termination the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Preferred Securities shall be paid
on a pro rata basis. The holders of the Common Securities will be entitled to
receive distributions upon any such dissolution, winding-up or termination pro
rata with the holders of the Preferred Securities, except that if a Declaration
Event of Default has occurred and is continuing, the Preferred Securities shall
have a preference over the Common Securities.
Pursuant to the Declaration, the Trust shall terminate (i) on
, 2040, the expiration of the term of the Trust, (ii) upon the
bankruptcy of Consumers, (iii) upon the filing of a certificate of dissolution
or its equivalent with respect to Consumers, or the revocation of the charter of
Consumers and the expiration of 90 days after the date of revocation without a
reinstatement thereof, (iv) upon the distribution of the Subordinated Notes
following the occurrence of a Special Event, (v) upon the entry of a decree of a
judicial dissolution of Consumers or the Trust or (vi) upon the redemption of
all of the Trust Securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture (an "Indenture Event of Default")
(see "Description of the Subordinated Notes -- Indenture Events of Default")
constitutes an event of default under the Declaration with respect to the Trust
Securities (a "Declaration Event of Default"), provided that pursuant to the
Declaration, the holder of the Common Securities will be deemed to have waived
any Declaration Event of Default with respect to the Common Securities or its
consequences until all Declaration Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until such
Declaration Events of Default with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee will be deemed to
be acting solely on behalf of the holders of the Preferred Securities and only
the holders of the Preferred Securities will have the right to direct the
Property Trustee with respect to certain matters under the Declaration, and
therefore the Indenture.
Upon the occurrence of a Declaration Event of Default, the Property
Trustee, as the sole holder of the Subordinated Notes, will have the right under
the Indenture to declare the principal of, and interest on, the Subordinated
Notes to be immediately due and payable.
VOTING RIGHTS
Except as provided below, under the Trust Act, the Trust Indenture Act and
under "Description of the Preferred Securities Guarantee -- Amendments and
Assignment" and as otherwise required by law, the holders of the Preferred
Securities will have no voting rights. In the event Consumers elects to defer
payments of interest on the Subordinated Notes as described above under "--
Distributions," the holders of the Preferred Securities do not have the right to
appoint a special representative or trustee or otherwise act to protect their
interests.
The holders of a majority in aggregate liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or to direct the
exercise of any trust or power conferred upon the Property Trustee under the
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Declaration, including the right to direct the Property Trustee, as the holder
of the Subordinated Notes, to (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debt Trustee (as
hereinafter defined) under the Indenture with respect to the Subordinated Notes,
(ii) waive any past Indenture Event of Default which is waivable under the Base
Indenture (as defined herein), or (iii) exercise any right to rescind or annul a
declaration that the principal of all the Subordinated Notes shall be due and
payable. If the Property Trustee fails to enforce its rights under the
Declaration to the fullest extent permitted by law, a holder of Preferred
Securities may institute a legal proceeding directly against any person to
enforce the Property Trustee's rights under the Declaration without first
instituting any legal proceeding against the Property Trustee or any other
person or entity. The Property Trustee shall notify all holders of the Preferred
Securities of any notice of default received from the Debt Trustee with respect
to the Subordinated Notes. Such notice shall state that such Indenture Event of
Default also constitutes a Declaration Event of Default. The Property Trustee
shall not take any action described in clauses (i), (ii), (iii) or (iv) above
unless the Property Trustee has obtained an opinion of independent tax counsel
to the effect that, as a result of such action, the Trust will not be classified
as other than a grantor trust for United States federal income tax purposes.
In the event the consent of the Property Trustee, as the holder of the
Subordinated Notes, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture, the Property Trustee
shall request the direction of the holders of the Trust Securities with respect
to such amendment, modification or termination. The Property Trustee shall vote
with respect to such amendment, modification or termination as directed by a
majority in liquidation amount of the Preferred Securities and, if no
Declaration Event of Default has occurred and is continuing, a majority in
liquidation amount of the Common Securities, voting together as, provided that
where a consent under the Indenture would require the consent of more than a
majority of the holders in principal amount of Subordinated Notes affected
thereby (a "Super-Majority"), the Property Trustee may only give such consent at
the direction of the holders of at least the proportion in liquidation amount of
the Preferred Securities and Common Securities, respectively, which the relevant
Super-Majority represents of the aggregate principal amount of the Subordinated
Notes outstanding. The Property Trustee shall not take any such action in
accordance with the directions of the holders of the Trust Securities unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that, as a result of such action, the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of Preferred Securities may
be given at a separate meeting of holders of Preferred Securities convened for
such purpose, at a meeting of all of the holders of Trust Securities or pursuant
to written consent. The Regular Trustees will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
mailed to each holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents. No vote or consent of the holders of Preferred
Securities will be required for the Trust to redeem and cancel Preferred
Securities or distribute Subordinated Notes in accordance with the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities at such time that are owned by Consumers or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, Consumers shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
The procedures by which holders of Preferred Securities may exercise their
voting rights are described below. See "-- Book-Entry Only Issuance -- The
Depository Trust Company."
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Holders of the Preferred Securities will have no rights to appoint or
remove the Consumers Trustees, who may be appointed, removed or replaced solely
by Consumers, as the direct or indirect holder of all the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be amended or modified if approved and executed by a
majority of the Regular Trustees (and in certain circumstances the Property
Trustee or the Delaware Trustee), provided that if any proposed amendment
provides for, or the Regular Trustees otherwise propose to effect, (i) any
action that would adversely affect the powers, preferences or special rights of
the Trust Securities, whether by way of amendment to the Declaration or
otherwise or (ii) the dissolution, winding-up or termination of the Trust other
than pursuant to the terms of the Declaration, then the holders of the Trust
Securities will be entitled to vote as a single class on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of at least a majority in liquidation amount of the Trust Securities
affected thereby, provided that a reduction of the principal amount or the
distribution rate, or a change in the payment dates or maturity of the Preferred
Securities, shall not be permitted without the consent of each holder of
Preferred Securities. In the event any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a majority in liquidation amount of such class of
Trust Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified for purposes of United States federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Property Trustee or (iii) cause the Trust to be deemed to be an "investment
company" which is required to be registered under the 1940 Act.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any business trust or other business entity (as
defined in the Trust Act), except as described below. The Trust may, with the
consent of a majority of the Regular Trustees and without the consent of the
holders of the Trust Securities, consolidate, amalgamate, merge with or into, or
be replaced by, a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Trust Securities or (y) substitutes
for the Trust Securities other securities having substantially the same terms as
the Trust Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Trust Securities rank in priority with respect
to distributions and payments upon liquidation, redemption, maturity and
otherwise, (ii) Consumers expressly acknowledges a trustee of such successor
entity which possesses the same powers and duties as the Property Trustee as the
holder of the Subordinated Notes, (iii) the Preferred Securities or any
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, (iv) such
merger, consolidation, amalgamation or replacement does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the
material rights, preferences and privileges of the holders of the Trust
Securities (including any Successor Securities) in any material respect (other
than with respect to any dilution of the holders' interest in the new entity),
(vi) such successor entity has a purpose identical to that of the Trust, (vii)
prior to such merger, consolidation, amalgamation or replacement, Consumers has
received an opinion from independent counsel to the Trust experienced in such
matters to the effect that (A) such merger, consolidation, amalgamation or
replacement does not adversely affect the material rights, preferences and
privileges of the holders of the Trust Securities (including any Successor
Securities) in any material respect (other than with respect to any dilution of
the holders' interest in the new entity), (B) following such merger,
consolidation, amalgamation or replacement, neither the Trust nor such successor
entity will be required to
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register as an investment company under the 1940 Act and (C) following such
merger, consolidation, amalgamation or replacement, the Trust (or the successor
entity) will continue to be classified as a grantor trust for United States
federal income tax purposes, and (viii) Consumers guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee. Notwithstanding the foregoing,
the Trust shall not, except with the consent of holders of 100% in liquidation
amount of the Trust Securities, consolidate, amalgamate, merge with or into, or
be replaced by, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the successor
entity to be classified for United States federal income tax purposes as other
than a grantor trust.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depository for
the Preferred Securities. The Preferred Securities will be issued only as fully
registered securities registered in the name of Cede & Co. (DTC's partnership
nominee). One or more fully registered Preferred Securities certificates will be
issued, representing in the aggregate the total number of Preferred Securities,
and will be deposited with DTC.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in a global Preferred
Security.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
the American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of Preferred Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
Preferred Securities ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Preferred Securities.
Transfers of ownership interests in the Preferred Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the event that use
of the book-entry system for the Preferred Securities is discontinued.
To facilitate subsequent transfers, all the Preferred Securities deposited
by Participants with DTC are registered in the name of DTC's nominee, Cede & Co.
The deposit of Preferred Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Preferred Securities. DTC's records reflect
only the identity of the Direct Participants to whose accounts such Preferred
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
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Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Preferred Securities are being redeemed, DTC will reduce pro rata the amount of
the interest of each Direct Participant in the Preferred Securities to be
redeemed in accordance with its procedures.
Although voting with respect to the Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will consent or
vote with respect to Preferred Securities. Under its usual procedures, DTC would
mail an Omnibus Proxy to the Trust as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the Preferred Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
Distribution payments on the Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the account of customers in bearer form or registered in "street name,"
and will be the responsibility of such Participant and not of DTC, the Trust,
any trustee, the underwriters or Consumers, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
distributions to DTC is the responsibility of the Trust, disbursement of such
payments to Direct Participants is the responsibility of DTC, and disbursement
of such payments to the Beneficial Owners is the responsibility of Direct and
Indirect Participants.
Except as provided below, a Beneficial Owner in a Preferred Security will
not be entitled to receive physical delivery of Preferred Securities.
Accordingly, each Beneficial Owner must rely on the procedures of DTC to
exercise any rights under the Preferred Securities.
DTC may discontinue providing its services as securities depository with
respect to the Preferred Securities at any time by giving reasonable notice to
the Trust. Under such circumstances, in the event that a successor securities
depository is not obtained, Preferred Securities certificates are required to be
printed and delivered. Additionally, the Regular Trustees (with the consent of
Consumers) may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor depository) with respect to the Preferred
Securities. In that event, certificates for the Preferred Securities will be
printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources, including DTC, that Consumers and the Trust
believe to be reliable, but Consumers and the Trust take no responsibility for
the accuracy thereof.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, prior to the occurrence of a default with respect to
the Trust Securities and after the curing of all such defaults that may have
occurred, undertakes to perform only such duties as are specifically set forth
in the Declaration and, after default, shall exercise the same degree of care as
a prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the request of any
holder of Preferred Securities, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be incurred
thereby; but the foregoing shall not relieve the Property Trustee, upon the
occurrence of a Declaration Event of Default, from exercising the rights and
powers vested in it by the Declaration. The Property Trustee also serves as
trustee under the Preferred Securities Guarantee.
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REGISTRAR AND TRANSFER AGENT
In the event that the Preferred Securities do not remain in book-entry only
form, the Property Trustee will act as paying agent and may designate an
additional or substitute paying agent at any time. Registration of transfers of
Preferred Securities will be effected without charge by or on behalf of the
Trust, but upon payment (with the giving of such indemnity as the Regular
Trustees may require) in respect of any tax or other government charges which
may be imposed in relation to it. The Trust will not be required to register or
cause to be registered the transfer of Preferred Securities after such Preferred
Securities have been called for redemption.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate the Trust in
such a way so that the Trust will not be deemed to be an "investment company"
required to be registered under the 1940 Act or characterized for United States
federal income tax purposes as other than a grantor trust. Consumers is
authorized and directed to conduct its affairs so that the Subordinated Notes
will be treated as indebtedness of Consumers for United States federal income
tax purposes. In this connection, the Regular Trustees and Consumers are
authorized to take any action, not inconsistent with applicable law, and the
restated articles of incorporation of Consumers, that each of the Regular
Trustees and Consumers determines in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially and
adversely affect the interests of the holders of the Preferred Securities.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
Set forth below is a summary of information concerning the Preferred
Securities Guarantee that will be executed and delivered by Consumers for the
benefit of the holders from time to time of the Preferred Securities. The
Preferred Securities Guarantee will be qualified as an indenture under the Trust
Indenture Act. The Bank of New York will act as the Preferred Guarantee Trustee.
The terms of the Preferred Securities Guarantee will be those set forth therein
and those made part thereof by the Trust Indenture Act. The following summary
does not purport to be complete and is subject in all respects to the provisions
of, and is qualified in its entirety by reference to, the Preferred Securities
Guarantee, which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, and the Trust Indenture Act. The Preferred
Securities will be held by the Preferred Guarantee Trustee for the benefit of
the holders of the Preferred Securities.
GENERAL
Pursuant to the Preferred Securities Guarantee, Consumers will irrevocably
and unconditionally agree, to the extent set forth therein, to pay in full to
the holders of the Preferred Securities the Guarantee Payments (as defined
herein) (without duplication of amounts theretofore paid by the Trust), to the
extent not paid by the Trust, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. The following payments or
distributions with respect to the Preferred Securities to the extent not paid or
made by the Trust (the "Guarantee Payments") will be subject to the Preferred
Securities Guarantee (without duplication): (i) any accrued and unpaid
distributions that are required to be paid on the Preferred Securities, to the
extent the Trust has funds available therefor, (ii) the Redemption Price,
including all accrued and unpaid distributions to the date of the redemption, to
the extent the Trust has funds available therefor, with respect to any Preferred
Securities called for redemption by the Trust and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust (other than in
connection with the distribution of Subordinated Notes to the holders of
Preferred Securities in exchange for Preferred Securities), the lesser of (a)
the aggregate of the liquidation amount and all accrued and unpaid distributions
on the Preferred
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Securities to the date of payment and (b) the amount of assets of the Trust
remaining available for distribution to holders of Preferred Securities in
liquidation of the Trust. Consumers' obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by Consumers to the
holders of Preferred Securities or by causing the Trust to pay such amounts to
such holders.
The Preferred Securities Guarantee will be a full and unconditional
guarantee of the Guarantee Payments with respect to the Preferred Securities
from the time of issuance of the Preferred Securities, but will not apply to the
payment of distributions and other payments on the Preferred Securities when the
Property Trustee does not have sufficient funds in the Property Account to make
such distributions or other payments. If Consumers does not make interest
payments on the Subordinated Notes held by the Property Trustee, the Trust will
not make distributions on the Preferred Securities issued by the Trust and will
not have funds available therefor. See "Description of the Subordinated Notes --
Certain Covenants."
Consumers will also agree separately to irrevocably and unconditionally
guarantee the obligations of the Trust with respect to the Common Securities
(the "Common Securities Guarantee") to the same extent as the Preferred
Securities Guarantee, except that upon the occurrence and during the
continuation of an Indenture Event of Default, holders of Preferred Securities
shall have priority over holders of Common Securities with respect to
distributions and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF CONSUMERS
In the Preferred Securities Guarantee, Consumers will covenant that, so
long as the Preferred Securities remain outstanding, if there shall have
occurred and is continuing any event that would constitute an event of default
under the Preferred Securities Guarantee or the Declaration, then (a) Consumers
shall not declare or pay any dividend on, or make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock, and (b) Consumers shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by Consumers which rank pari passu
with or junior to the Subordinated Notes or (c) Consumers shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee); provided, however, Consumers may declare and
pay a stock dividend where the dividend stock is the same stock as that on which
the dividend is being paid.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required), the
Preferred Securities Guarantee may be amended only with the prior approval of
the holders of not less than a majority in liquidation amount of the outstanding
Preferred Securities. The manner of obtaining any such approval of holders of
the Preferred Securities is set forth under "Description of the Preferred
Securities -- Voting Rights." All guarantees and agreements contained in the
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of Consumers and shall inure to the benefit of the
Preferred Guarantee Trustee and the holders of the Preferred Securities then
outstanding.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will terminate and be of no further
force and effect as to the Preferred Securities upon full payment of the
Redemption Price of all Preferred Securities, or upon distribution of the
Subordinated Notes to the holders of the Preferred Securities, and will
terminate completely upon full payment of the amounts payable upon liquidation
of the Trust. See "Description of the Subordinated Notes -- Indenture Events of
Default" for a description of the events of default and enforcement rights of
the holders of Subordinated Notes. The Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Preferred Securities must repay to the Trust or Consumers, or
their successors, any sums paid to them under such Preferred Securities or the
Preferred Securities Guarantee.
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EVENTS OF DEFAULT
An event of default under the Preferred Securities Guarantee will occur
upon the failure of Consumers to perform any of its payment or other obligations
thereunder.
The holders of a majority in liquidation amount of the Preferred Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Preferred Guarantee Trustee in respect of the
Preferred Securities Guarantee or to direct the exercise of any trust or power
conferred upon the Preferred Guarantee Trustee under the Preferred Securities
Guarantee. If the Preferred Guarantee Trustee fails to enforce the Preferred
Securities Guarantee, any holder of Preferred Securities may institute a legal
proceeding directly against Consumers to enforce the Preferred Guarantee
Trustee's rights under the Preferred Securities Guarantee, without first
instituting a legal proceeding against the Trust, the Preferred Guarantee
Trustee or any other person or entity.
STATUS OF THE PREFERRED SECURITIES GUARANTEE
Consumers' obligations under the Preferred Securities Guarantee to make the
Guarantee Payments will constitute an unsecured obligation of Consumers and will
rank (i) subordinate and junior in right of payment to all other liabilities of
Consumers, including the Subordinated Notes, except those liabilities of
Consumers made pari passu or subordinate by their terms, (ii) pari passu with
the most senior preferred stock now or hereafter issued by Consumers and with
any guarantee now or hereafter entered into by Consumers in respect of any
preferred stock of any affiliate of Consumers, and (iii) senior to Consumers'
common stock. The terms of the Preferred Securities provide that each holder of
Preferred Securities by acceptance thereof agrees to the subordination
provisions and other terms of the Preferred Securities Guarantee.
The Preferred Securities Guarantee will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without instituting a legal proceeding against any other person or
entity). The Preferred Securities Guarantee will be deposited with the Preferred
Guarantee Trustee to be held for the benefit of the holders of the Preferred
Securities. Except as otherwise noted herein, the Preferred Guarantee Trustee
has the right to enforce the Preferred Securities Guarantee on behalf of the
holders of the Preferred Securities. The Preferred Securities Guarantee will not
be discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Trust).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to the Preferred Securities Guarantee and after the curing of all such
defaults that may have occurred, undertakes to perform only such duties as are
specifically set forth in the Preferred Securities Guarantee and, after default,
shall exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provisions, the Preferred
Guarantee Trustee is under no obligation to exercise any of the powers vested in
it by the Preferred Securities Guarantee at the request of any holder of
Preferred Securities, unless offered reasonable indemnity against the costs,
expenses and liabilities which might be incurred thereby; but the foregoing
shall not relieve the Preferred Guarantee Trustee, upon the occurrence of an
event of default under the Preferred Securities Guarantee, from exercising the
rights and powers vested in it by the Preferred Securities Guarantee. The
Preferred Guarantee Trustee also serves as Property Trustee.
GOVERNING LAW
The Preferred Securities Guarantee will be governed by, and construed in
accordance with, the internal laws of the State of Michigan.
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DESCRIPTION OF THE SUBORDINATED NOTES
Set forth below is a description of the terms of the Subordinated Notes.
The following description does not purport to be complete and is subject to, and
is qualified in its entirety by reference to, the Indenture (the "Base
Indenture"), dated as of November , 1995, between Consumers and Bank of New
York as Trustee (the "Debt Trustee"), as supplemented by a First Supplemental
Indenture, dated as of , 1995 (the Base Indenture, as so supplemented,
is hereinafter referred to as the "Indenture"), the forms of which are filed as
an exhibit to the Registration Statement of which this Prospectus forms a part.
The terms of the Subordinated Notes will include those stated in the Indenture
and those made a part of the Indenture by reference to the Trust Indenture Act.
Certain capitalized terms used herein are defined in the Indenture.
Under certain circumstances involving the termination of the Trust
following the occurrence of a Special Event, Subordinated Notes may be
distributed to the holders of Trust Securities in liquidation of the Trust. See
"Description of the Preferred Securities -- Special Event Redemption or
Distribution."
If the Subordinated Notes are distributed to the holders of the Trust
Securities, Consumers will use its best efforts to have the Subordinated Notes
listed on the New York Stock Exchange or on such other exchange on which the
Preferred Securities are then listed.
GENERAL
The Subordinated Notes will be issued as a series of unsecured subordinated
debt securities under the Indenture. The Subordinated Notes will be limited in
aggregate principal amount to approximately $103.1 million, such amount being
the sum of the aggregate stated liquidation amount of the Preferred Securities
and the capital contributed by Consumers in exchange for the Common Securities
(the "Payment").
The Subordinated Notes are not entitled to the benefit of any sinking fund.
Unless redeemed earlier, the entire principal amount of the Subordinated Notes
will mature and become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest (as defined herein), if any, on
, 2035.
If Subordinated Notes are distributed to holders of the Preferred
Securities in liquidation of such holders' interests in the Trust, it is
anticipated that such distribution would occur in book-entry form and that DTC,
or any successor depository for the Preferred Securities, would act as
depository for the Subordinated Notes and that the depository arrangements for
the Subordinated Notes would be substantially identical to those in effect for
the Preferred Securities. For a description of DTC and the terms of the
depository arrangements relating to payments, transfers, voting rights,
redemption and other notices and other matters, see "Description of the
Preferred Securities -- Book-Entry-Only Issuance -- The Depository Trust
Company."
Except under certain limited circumstances as described under "Description
of the Preferred Securities -- Book-Entry-Only Issuance -- The Depository Trust
Company" for delivery of certificates evidencing beneficial ownership in
Preferred Securities, the Subordinated Notes would not be issuable as, or
exchangeable for, Subordinated Notes in definitive certificated form. In the
event Subordinated Notes are issued in certificated form, such Subordinated
Notes will be in denominations of $25 and integral multiples thereof, and
principal and interest will be payable, the transfer of the Subordinated Notes
will be registrable and Subordinated Notes will be exchangeable for Subordinated
Notes of authorized denominations of a like aggregate principal amount as
described under "Exchange and Transfer" and "Payment" below.
SUBORDINATION
The Indenture provides (and each holder of Subordinated Notes by acceptance
thereof agrees) that the Subordinated Notes will be subordinated and junior in
right of payment to the prior payment in full of all Senior Indebtedness of
Consumers. No payment on account of principal of, premium, if any, or interest
on the Subordinated Notes and no acquisition of, or payment on account of any
sinking fund for, the Subordinated Notes may be made unless full payment of
amounts then due for principal, premium, if any, and interest then due on all
Senior Indebtedness by reason of the maturity thereof (by lapse of time,
acceleration or otherwise) has been made or duly provided for in cash in a
manner satisfactory to the holders of such Senior
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Indebtedness. In addition, the Indenture provides that upon the happening and
during the continuation of any default in payment of the principal of, premium,
if any, or interest on any Senior Indebtedness when the same becomes due and
payable or in the event any judicial proceeding shall be pending with respect to
any such default, then unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment shall be made by Consumers with
respect to the principal of, premium, if any, or interest on Subordinated Notes
or to acquire any Subordinated Notes or on account of any sinking fund provision
applicable to Subordinated Notes. Consumers shall give prompt written notice to
the Debt Trustee of any default under any Senior Indebtedness or under any
agreement pursuant to which Senior Indebtedness may have been issued. The
Indenture provisions described in this paragraph, however, do not prevent
Consumers from making a sinking fund payment with Subordinated Notes acquired
prior to the maturity of Senior Indebtedness. Upon any distribution of its
assets in connection with any dissolution, winding-up, liquidation or
reorganization of Consumers, whether voluntary, or involuntary, in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise, all Senior Indebtedness must be paid in full before the
holders of the Subordinated Notes are entitled to any payments whatsoever. Any
payment or distribution, whether in cash, securities or other property, which
would otherwise (but for the subordination provisions) be payable or deliverable
in respect of the Subordinated Notes shall be paid or delivered directly to the
holders of such Senior Indebtedness (or their representative or trustee) in
accordance with the priorities then existing among such holders until all Senior
Indebtedness shall have been paid in full before any payment or distribution is
made to the holders of Subordinated Notes. In the event that notwithstanding
such subordination provisions any payment or distribution of assets of any kind
or character is made on the Subordinated Notes before all Senior Indebtedness is
paid in full, the Debt Trustee or the holders of Subordinated Notes receiving
such payment will be required to pay over such payment or distribution to the
holders of such Senior Indebtedness. The rights of the holders of the
Subordinated Notes will be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions applicable to Senior
Indebtedness until all amounts owing on the Subordinated Notes are paid in full.
As a result of these subordination provisions, in the event of Consumers'
insolvency, holders of the Subordinated Notes may recover ratably less than
senior creditors of Consumers.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on the following, whether outstanding on the date of execution of the
Indenture or thereafter incurred, created or assumed: (i) indebtedness of
Consumers for money borrowed by Consumers (including purchase money obligations)
or evidenced by debentures (other than the Subordinated Notes), notes, bankers'
acceptances or other corporate debt securities or similar instruments issued by
Consumers; (ii) all capital lease obligations of Consumers; (iii) all
obligations of Consumers issued or assumed as the deferred purchase price of
property, all conditional sale obligations of Consumers and all obligations of
Consumers under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) obligations with
respect to letters of credit; (v) all indebtedness of others of the type
referred to in the preceding clauses (i) through (iv) assumed by or guaranteed
in any manner by Consumers or in effect guaranteed by Consumers; or; (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
persons secured by any lien on any property or asset of Consumers (whether or
not such obligation is assumed by Consumers), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Subordinated Notes, as the case may be, including all other debt securities and
guarantees in respect of those debt securities, issued to any other trusts,
partnerships or other entities affiliated with Consumers which act as a
financing vehicle of Consumers in connection with the issuance of preferred
securities by such entity or other securities which rank pari passu with, or
junior to, the Preferred Securities, and (2) any indebtedness between or among
Consumers and its affiliates and (vii) renewals, extensions or refunding of any
of the indebtedness referred to in the preceding clauses unless, in the case of
any particular indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same or the assumption
or guarantee of the same, or pursuant to which the same is outstanding, such
indebtedness or such renewal, extension or refunding thereof is not superior in
right of payment to the Subordinated Notes.
The Indenture does not limit the aggregate amount of Senior Indebtedness
that may be issued. As of June 30, 1995, Senior Indebtedness of Consumers
aggregated approximately $2,456 million.
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CERTAIN COVENANTS
If (i) there shall have occurred any event that would constitute an
Indenture Event of Default or (ii) Consumers shall be in default with respect to
its payment of any obligations under the Preferred Securities Guarantee or the
Common Securities Guarantee, then (a) Consumers shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or make
a liquidation payment with respect to, any of its capital stock, (b) Consumers
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities (including guarantees) issued by
Consumers which rank pari passu with or junior to the Subordinated Notes and (c)
Consumers shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee).
If Consumers shall have given notice of its election of an Extension Period
as provided in the Indenture and such period, or any extension thereof, shall be
continuing, then (a) Consumers shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock, (b) Consumers shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities (including guarantees) issued by Consumers which
rank pari passu with or junior to the Subordinated Notes and (c) Consumers shall
not make any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantee) provided, however, Consumers may
declare and pay a stock dividend where the dividend stock is the same stock as
that on which the dividend is being paid. Any Extension Period with respect to
payment of interest on the Subordinated Notes will also apply to distributions
with respect to the Preferred Securities.
For so long as the Trust Securities remain outstanding, Consumers will
covenant (i) to maintain 100% direct or indirect ownership of the Common
Securities of the Trust; provided, however, that any permitted successor of
Consumers under the Indenture may succeed to Consumers' ownership of such Common
Securities, (ii) not to cause, as sponsor of the Trust, or to permit, as holder
of the Common Securities, the dissolution, winding-up or termination of the
Trust, except in connection with a distribution of the Subordinated Notes as
provided in the Declaration and in connection with certain mergers,
consolidations or amalgamations and (iii) to use its reasonable efforts to cause
the Trust (a) to remain a statutory business trust, except in connection with
the distribution of Subordinated Notes to the holders of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities of the
Trust, or certain mergers, consolidations or amalgamations, each as permitted by
the Declaration, and (b) to otherwise continue to be classified as a grantor
trust for United States federal income tax purposes.
OPTIONAL REDEMPTION
Consumers shall have the right to redeem the Subordinated Notes, in whole
or in part, from time to time, on or after December 31, 2000, or at any time in
certain circumstances upon the occurrence of a Special Event as described under
"Description of the Preferred Securities -- Special Event Redemption or
Distribution," upon not less than 30 nor more than 60 days' notice, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest, including Additional Interest, if any, to the
redemption date. If a partial redemption of the Preferred Securities resulting
from a partial redemption of the Subordinated Notes would result in the
delisting of the Preferred Securities, Consumers may only redeem the
Subordinated Notes in whole.
INTEREST
Each Subordinated Note shall bear interest at the rate of % per annum
from the original issue date, payable quarterly in arrears on December 31, March
31, June 30 and September 30 of each year (each, an "Interest Payment Date"),
commencing December 31, 1995, to the person in whose name such Subordinated Note
is registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. In the event the
Subordinated Notes shall not continue to remain in book-entry only form the
relevant record dates shall be the fifteenth day prior to each of the month in
which the applicable Interest Payment Date occurs.
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The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any period shorter than a full quarterly period will be computed on the basis of
the actual number of days elapsed in such 90-day quarter. In the event that any
date on which interest is payable on the Subordinated Notes is not a Business
Day, then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Consumers shall have the right at any time, and from time to time, during
the term of the Subordinated Notes to defer payments of interest by extending
the interest payment period for a period not exceeding 20 consecutive quarters,
at the end of which Extension Period, Consumers shall pay all interest then
accrued and unpaid (including any Additional Interest, together with interest
thereon at the rate specified for the Subordinated Notes to the extent permitted
by applicable law); provided, that, during any such Extension Period, (a)
Consumers shall not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase or make a liquidation payment with respect to,
any of its capital stock, (b) Consumers shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by Consumers which rank pari passu with
or junior to the Subordinated Notes and (c) Consumers shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee), provided, however, Consumers may declare and
pay a stock dividend where the dividend stock is the same stock as that on which
the dividend is being paid. Prior to the termination of any such Extension
Period, Consumers may further defer payments of interest by extending the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity of the Subordinated Notes. Upon the
termination of any Extension Period and the payment of all amounts then due,
Consumers may select a new Extension Period, as if no Extension Period had
previously been declared, subject to the above requirements. No interest during
an Extension Period shall be due and payable, except at the end thereof.
Consumers has no present intention of exercising its rights to defer payments of
interest by extending the interest payment period on the Subordinated Notes. If
the Property Trustee shall be the sole registered holder of the Subordinated
Notes, Consumers shall give the Regular Trustees and the Property Trustee notice
of its election of such Extension Period one Business Day prior to the earlier
of (i) the next succeeding date on which distributions on the Preferred
Securities are payable or (ii) the date the Trust is required to give notice to
the New York Stock Exchange or other applicable self-regulatory organization or
to holders of the Preferred Securities of the record date or the date such
distribution is payable, but in any event not less than one Business Day prior
to such record date. The Regular Trustees shall give notice of Consumers'
selection of such Extension Period to the holders of the Preferred Securities.
If the Property Trustee shall not be the sole holder of the Subordinated Notes,
Consumers shall give the holders of the Subordinated Notes notice of its
selection of such Extension Period ten Business Days prior to the earlier of (i)
the Interest Payment Date or (ii) the date Consumers is required to give notice
to the New York Stock Exchange or other applicable self-regulatory organization
or to holders of the Subordinated Notes of the record or payment date of such
related interest payment, but in any event at least two Business Days before
such record date.
ADDITIONAL INTEREST
If at any time the Trust or the Property Trustee shall be required to pay
any taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, Consumers will pay as additional interest
("Additional Interest") such additional amounts as shall be required so that the
net amounts received and retained by the Trust and the Property Trustee after
paying any such taxes, duties, assessments or other governmental charges will be
equal to the amounts the Trust and the Property Trustee would have received had
no such taxes, duties, assessments or other governmental charges been imposed.
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INDENTURE EVENTS OF DEFAULT
The occurrence of any of the following events will constitute an "Indenture
Event of Default" with respect to the Subordinated Notes: (a) default for 30
days in the payment of any interest on any of the Subordinated Notes (including
any Additional Interest) provided, however, that a valid extension of the
interest payment period as described above shall not constitute a default in the
payment of interest for this purpose; (b) default in the payment when due of any
of the principal of or the premium, if any, on any of the Subordinated Notes,
whether at maturity, upon redemption, acceleration or otherwise; (c) default in
the deposit or payment of any sinking fund or analogous payment in respect of
any Subordinated Notes; (d) default for 60 days by Consumers in the observance
or performance of any other covenant or agreement contained in the Subordinated
Notes or the Indenture after written notice thereof as provided in the
Indenture; (e) certain events of bankruptcy, insolvency or reorganization
relating to Consumers; (f) the voluntary or involuntary dissolution, winding-up
or termination of the Trust, except in connection with the distribution of
Subordinated Notes to the holders of Preferred Securities in liquidation of the
Trust, the redemption of all outstanding Trust Securities of the Trust and
certain mergers, consolidations or amalgamations permitted by the Declaration.
If an Indenture Event of Default on Subordinated Notes shall have occurred
and be continuing, either the Debt Trustee or the holders of not less than 25%
in aggregate principal amount of the Subordinated Notes then outstanding may
declare the principal of all Subordinated Notes and the interest, if any,
accrued thereon to be due and payable immediately. Accordingly, the Property
Trustee, as the holder of the Subordinated Notes, will have the right to declare
the principal of and the interest on the Subordinated Notes (including any
Additional Interest, if any) and any other amounts payable under the Indenture
to be forthwith due and payable and to enforce its other rights as a creditor
with respect to the Subordinated Notes.
Upon certain conditions, any such declarations may be rescinded and
annulled if all Indenture Events of Default, other than the nonpayment of
accelerated principal, with respect to the Subordinated Notes of all such and
Securities of other affected series then outstanding under the Indenture shall
have been cured or waived as provided in the Indenture by the holders of a
majority in aggregate principal amount of the Subordinated Notes and Securities
of other affected series then outstanding under the Indenture.
The Indenture provides that, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request, order
or direction of the holders of the Subordinated Notes, unless such holders shall
have offered to the Debt Trustee reasonable indemnity. Subject to such
provisions for indemnity and certain other limitations contained in the
Indenture, the holders of a majority in aggregate principal amount of the
Subordinated Notes of each affected series then outstanding (voting as one
class) will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Debt Trustee, or exercising any
trust or power conferred on the Debt Trustee, with respect to the Subordinated
Notes of such affected series.
The Indenture provides that no holder of Subordinated Notes may institute
any action against Consumers under the Indenture (except actions for payment of
overdue principal, premium or interest) unless such holder previously shall have
given to the Debt Trustee written notice of default and continuance thereof and
unless the holders of not less than 25% in aggregate principal amount of the
Subordinated Notes and Securities of other affected series then outstanding
under the Indenture (voting as one class) shall have requested the Debt Trustee
to institute such action and shall have offered the Debt Trustee reasonable
indemnity, the Debt Trustee shall not have instituted such action within 60 days
of such request and the Debt Trustee shall not have received direction
inconsistent with such request by the holders of a majority in aggregate
principal amount of the Subordinated Notes and Securities of other affected
series then outstanding under the Indenture (voting as one class).
The Indenture requires Consumers to furnish to the Debt Trustee annually a
statement as to Consumers' compliance with all conditions and covenants under
the Indenture. The Indenture provides that the Debt Trustee may withhold notice
to the holders of the Subordinated Notes of any series of any default affecting
such series (except defaults as to payment of principal, premium or interest on
the Subordinated Notes of
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such series) if it considers such withholding to be in the interests of the
holders of the Subordinated Notes of such series.
EXCHANGE AND TRANSFER
If the book-entry only system is not in effect, Subordinated Notes may be
presented for exchange and registered Subordinated Notes may be presented for
registration of transfer at the office or agency of the Debt Trustee subject to
the restrictions set forth therein, without service charge, but upon payment of
any taxes or other governmental charges due in connection therewith, subject to
any applicable limitations contained in the Indenture.
PAYMENT
If the book-entry only system is not in effect, payment of the principal of
and the premium and interest, if any, on all Subordinated Notes will be made at
the office or agency of the Debt Trustee in the Borough of Manhattan, the City
of New York except that, at the option of Consumers, payment of any interest may
be made (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by wire transfer to
an account maintained by the Person entitled thereto as specified in the
Security Register. Payment of any interest due on Subordinated Notes in
registered form will be made to the Persons in whose name such Subordinated
Notes are registered at the close of business on the record date for such
interest payments.
MODIFICATION OF THE INDENTURE
The Indenture permits Consumers and the Debt Trustee to enter into
supplemental indentures thereto without the consent of the holders of the
Subordinated Notes to: (a) secure the Subordinated Notes, (b) evidence the
assumption by a successor corporation of the obligations of Consumers under the
Indenture and the Subordinated Notes then outstanding, (c) add covenants for the
protection of the holders of the Subordinated Notes, (d) cure any ambiguity or
correct any inconsistency in the Indenture, (e) establish the form and terms of
any series of securities under the Indenture and (f) evidence the acceptance of
appointment by a successor Debt Trustee.
The Indenture also permits Consumers and the Debt Trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of the
Subordinated Notes and other Indenture securities of all series then outstanding
and affected (voting as one class), to add any provisions to, or change in any
manner or eliminate any of the provisions of, the Indenture or modify in any
manner the rights of the holders of the Subordinated Notes and other Indenture
Securities; provided, however, that Consumers and the Debt Trustee may not,
without the consent of the holder of each such security then outstanding and
affected thereby: (a) change the time of payment of the principal (or any
installment) of any such security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or or impair
the right to institute suit for the enforcement of any payment on any
Subordinated Note when due or (b) reduce the percentage in principal amount of
the Indenture securities, the consent of whose holders is required for any such
modification or for any waiver provided for in the Indenture.
Prior to the acceleration of the maturity of any Subordinated Note or other
securities outstanding under the Indenture, the holders of a majority in
aggregate principal amount of Subordinated Notes and other securities
outstanding under the Indenture with respect to which a default or an Event of
Default shall have occurred and be continuing (voting as one class) may on
behalf of the holders of all such affected securities (including the
Subordinated Notes) waive any past default or Event of Default and its
consequences, except a default or an Event of Default in respect of a covenant
or provision of the Indenture or of any Subordinated Note or other Indenture
security which cannot be modified or amended without the consent of the holder
of each Subordinated Note or other Indenture security affected.
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CONSOLIDATION, MERGER OR SALE OF ASSETS
The Indenture provides that Consumers may consolidate with or merge into,
or sell, lease or convey its property as an entirety or substantially as an
entirety to, any other corporation if such corporation assumes the obligations
of Consumers under the Subordinated Notes and the Indenture and is organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia.
DEFEASANCE AND DISCHARGE
The Indenture provides that, at the option of Consumers: Consumers will be
discharged from any and all obligations in respect of the Subordinated Notes
(except for certain obligations to register the transfer of or exchange the
Subordinated Notes of such series, to replace stolen, lost or mutilated
Subordinated Notes, to maintain paying agencies and to maintain the trust
described below), if Consumers irrevocably deposits in trust with the Debt
Trustee money, and/or securities backed by the full faith and credit of the
United States which, through the payment of the principal thereof and the
interest thereon in accordance with their terms, will provide money in an amount
sufficient to pay all the principal of and premium, if any, and interest on the
Subordinated Notes of such series on the stated maturity of such Subordinated
Notes (which may include one or more redemption dates designated by Consumers)
in accordance with the terms thereof. If such deposit occurs more than one year
prior to the stated maturity or redemption date of such Subordinated Notes,
Consumers is required, among other things, to deliver to the Debt Trustee an
opinion of independent counsel to the effect that the exercise of such option
would not cause the holders of the Subordinated Notes to recognize income, gain
or loss for United States federal income tax purposes as a result of such
defeasance, and such holders will be subject to United States federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
Consumers may also obtain a discharge of the Indenture with respect to all
securities then outstanding under the Indenture including Subordinated Notes
(except for certain obligations to register the transfer of or exchange such
Subordinated Notes to replace stolen, lost or mutilated Subordinated Notes, to
maintain paying agencies and to maintain the trust described below) by
irrevocably depositing in trust with the Debt Trustee money, and/or securities
backed by the full faith and credit of the United States which, through the
payment of the principal thereof and the interest thereon in accordance with
their terms, will provide money in an amount sufficient to pay all the principal
of and premium, if any, and interest on the Subordinated Notes on the stated
maturities thereof (including one or more redemption dates), provided that such
Subordinated Notes are by their terms due and payable, or are to be called for
redemption, within one year.
GOVERNING LAW
The Indenture and Subordinated Notes will be governed by, and construed in
accordance with, the laws of the State of Michigan; provided, however, that the
rights, duties and obligations of the Trustee are governed and constructed in
accordance with the laws of the State of New York.
MISCELLANEOUS
The Indenture will provide that Consumers will pay all fees and expenses
related to (i) the offering of the Trust Securities and the Subordinated Notes,
(ii) the organization, maintenance and dissolution of the Trust, (iii) the
retention of the Consumers Trustees and (iv) the enforcement by the Property
Trustee of the rights of holders of Preferred Securities.
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED NOTES
AND THE PREFERRED SECURITIES GUARANTEE
As set forth in the Declaration, the sole purposes of the Trust are to (i)
issue Trust Securities, (ii) invest the proceeds thereof in the Subordinated
Notes and (iii) engage in only those other activities necessary or incidental
thereto.
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As long as payments of interest and other payments are made when due on the
Subordinated Notes, such payments will be sufficient to cover distributions and
payments due on the Trust Securities primarily because (i) the aggregate
principal amount of Subordinated Notes will be equal to the sum of the aggregate
stated liquidation amount of the Trust Securities; (ii) the interest rate and
interest and other payment dates on the Subordinated Notes will match the
distribution rate and distribution and other payment dates for the Preferred
Securities; (iii) Consumers shall pay for all costs and expenses of the Trust;
and (iv) the Declaration provides that the Consumers Trustees shall not cause or
permit the Trust to, among other things, engage in any activity that is not
consistent with the purposes of the Trust.
Payments of distributions (to the extent funds therefor are available) and
other payments due on the Preferred Securities (to the extent funds therefor are
available) are guaranteed by Consumers as and to the extent set forth under
"Description of the Preferred Securities Guarantee". If Consumers does not make
interest payments on the Subordinated Notes purchased by the Trust, it is
expected that the Trust will not have sufficient funds to pay distributions on
the Preferred Securities. The Preferred Securities Guarantee is a full and
unconditional guarantee from the time of its issuance, but does not apply to any
payment of distributions unless and until the Trust has sufficient funds for the
payment of such distributions.
If Consumers fails to make interest or other payments on the Subordinated
Notes when due (taking into account any Extension Period), the Declaration
provides a mechanism whereby the holders of the Preferred Securities, using the
procedures described in "Description of the Preferred Securities -- Voting
Rights," may direct the Property Trustee to enforce its rights under the
Subordinated Notes, including proceeding directly against Consumers to enforce
the Subordinated Notes. If the Property Trustee fails to enforce its rights
under the Subordinated Notes, to the fullest extent permitted by law, a holder
of Preferred Securities may, after a period of 30 days has elapsed from such
holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against Consumers to enforce the Property
Trustee's rights under the Subordinated Notes without first instituting any
legal proceeding against the Property Trustee or any other person or entity,
including the Trust.
If Consumers fails to make payments under the Preferred Securities
Guarantee, the Preferred Securities Guarantee provides a mechanism whereby the
holders of the Preferred Securities may direct the Preferred Guarantee Trustee
to enforce its rights thereunder. If the Preferred Guarantee Trustee fails to
enforce the Preferred Securities Guarantee, any holder of Preferred Securities
may institute a legal proceeding directly against Consumers to enforce the
Preferred Guarantee Trustee's rights under the Preferred Securities Guarantee,
without first instituting a legal proceeding against the Trust, the Preferred
Guarantee Trustee or any other person or entity.
The above mechanisms and obligations, taken together, are equivalent to a
full and unconditional guarantee by Consumers of payments due on the Preferred
Securities. See "Description of the Preferred Securities Guarantees -- General."
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following summary of certain of the principal United States federal
income tax consequences of the purchase, ownership and disposition of the
Preferred Securities to a holder that is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized under
the laws of the United States or any state thereof or the District of Columbia
or an estate or trust the income of which is subject to United States federal
income taxation regardless of its source (a "Holder") represents the opinion of
Reid & Priest LLP, special tax counsel to Consumers and the Trust. Investors
should be aware that the opinion of Reid & Priest LLP does not address any other
issue and is not binding on the Internal Revenue Service (the "Service") or the
courts. This summary does not address the United States federal income tax
consequences to persons other than Holders.
This summary is based on the United States federal income tax laws,
regulations and rulings and decisions now in effect, all of which are subject to
change, possibly on a retroactive basis. This summary does not address the tax
consequences applicable to investors that may be subject to special tax rules
such as banks,
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thrifts, real estate investment trusts, regulated investment companies,
insurance companies, dealers in securities or currencies, tax-exempt investors
or persons that will hold the Preferred Securities as a position in a
"straddle," as part of a "synthetic security" or "hedge," as part of a
"conversion transaction" or other integrated investment or as other than a
capital asset. This summary also does not address the tax consequences to
persons that have a functional currency other than the U.S. dollar or the tax
consequences to shareholders, partners or beneficiaries of a Holder. Further, it
does not include any description of any alternative minimum tax consequences or
the tax laws of any state or local government or of any foreign government that
may be applicable to a Holder.
CLASSIFICATION OF THE SUBORDINATED NOTES
In connection with the issuance of the Subordinated Notes, Reid & Priest
LLP, special tax counsel to Consumers and the Trust, will render its opinion
generally to the effect that, although not entirely free from doubt, under then
current law and assuming full compliance with the terms of the Indenture (and
certain other documents), and based on certain facts and assumptions contained
in such opinion, the Subordinated Notes held by the Trust will be classified for
United States federal income tax purposes as indebtedness of Consumers.
CLASSIFICATION OF CONSUMERS POWER COMPANY FINANCING I
Reid & Priest LLP, special tax counsel to Consumers and to the Trust, is of
the opinion that, under current law and assuming full compliance with the terms
of the Indenture and the Declaration (and certain other documents), the Trust
will be classified as a "grantor trust" for federal income tax purposes and will
not be classified as an association taxable as a corporation. Each Holder will
be treated as owning an undivided beneficial interest in the Subordinated Notes.
Accordingly, each Holder will be required to include in its gross income the OID
accrued with respect to its allocable share of Subordinated Notes.
ORIGINAL ISSUE DISCOUNT, PREMIUM AND MARKET DISCOUNT
Because of the option that Consumers has, under the terms of the
Subordinated Notes, to defer payments of interest by extending interest payment
periods for up to not more than 20 consecutive quarters, the Subordinated Notes
will be treated as issued with OID in an amount equal to all of the stated
interest payments on the Subordinated Notes. Holders must include the OID
attributable to the Subordinated Notes in income on an economic accrual basis
before the receipt of cash attributable to the interest, regardless of their
method of tax accounting. The amount of OID that accrues in any month will
approximately equal the amount of the interest that accrues in that month at the
stated interest rate. In the event that the interest payment period is extended,
Holders will continue to accrue OID approximately equal to the amount of the
interest payment due at the end of the extended interest payment period on an
economic accrual basis over the length of the extended interest period.
Corporate Holders will not be entitled to a dividends-received deduction with
respect to any income earned with respect to the Preferred Securities.
In addition, the amount of OID will be increased or decreased if the issue
price of the Subordinated Notes (offering price of the Preferred Securities at
the time of the issuance) is less than or greater than their stated principal
amount. It is anticipated that the issue price of the Subordinated Notes will
equal or exceed their stated principal amount. In the event that the issue price
of the Subordinated Notes is less than their stated principal amount, however,
the Treasury Regulations may be read to require a recalculation of the amount of
OID for each period that Consumers does not exercise its right to extend the
interest payment period. This recalculation could result in minor adjustments to
the amount of OID taxable to the Holders for such period. To the extent a
subsequent Holder acquires its Preferred Securities at a price that is greater
or less than the adjusted issue price of such Holder's share of Subordinated
Notes (the offering price of the Preferred Securities, adjusted for the accrual
of OID and interest payments), the Holder will be deemed to have acquired its
interest in the Preferred Securities with acquisition premium or with market
discount, as the case may be. A subsequent Holder acquiring Preferred Securities
at a premium will be permitted to reduce the amount of OID required to be
included in income to reflect the acquisition premium. A subsequent Holder
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acquiring Preferred Securities at a market discount will also include the amount
of such discount in income in accordance with the market discount rules
described below.
A subsequent Holder acquiring Preferred Securities at a market discount
generally will be required to recognize ordinary income to the extent of accrued
market discount upon the retirement of the underlying Subordinated Notes or, to
the extent of any gain, upon the disposition of the Preferred Securities. Such
market discount would accrue ratably, or, at the election of the Holder, under a
constant yield method over the remaining term of the Subordinated Notes. A
Holder will also be required to defer the deduction of a portion of the interest
paid or accrued on indebtedness incurred to purchase or carry Preferred
Securities acquired with market discount. In lieu of the foregoing, a Holder may
elect to include market discount in income currently as it accrues on all market
discount instruments acquired by such Holder in the taxable year of the election
or thereafter, in which case the interest deferral rule will not apply. A Holder
may elect, in lieu of applying the market discount or premium rules described
above, to account for all income under the Preferred Securities as if it were
OID.
RECEIPT OF SUBORDINATED NOTES UPON LIQUIDATION OF THE TRUST
Under certain circumstances, as described under the caption "Description of
the Preferred Securities -- Special Event Redemption or Distribution,"
Subordinated Notes may be distributed to Holders in exchange for the Preferred
Securities and in liquidation of the Trust. Such a distribution would be treated
as a non-taxable event to each Holder and each Holder would receive an aggregate
tax basis in the Subordinated Notes equal to such Holder's aggregate tax basis
in the Preferred Securities. A Holder's holding period in the Subordinated Notes
so received in liquidation of the Trust would include the period for which the
Preferred Securities were held by such Holder.
RECEIPT OF CASH UPON LIQUIDATION OF THE TRUST
Under certain circumstances, as described under the caption "Description of
the Preferred Securities -- Special Event Redemption or Distribution," the
Subordinated Notes may be redeemed for cash and the proceeds of such redemption
distributed to Holders in redemption of the Preferred Securities. Under current
law, such a redemption would, for United States federal income tax purposes,
constitute a taxable disposition of the Preferred Securities, and a Holder would
recognize gain or loss as if such Holder had sold such redeemed Preferred
Securities. See "Sale of Preferred Securities."
SALE OF PREFERRED SECURITIES
A Holder that sells Preferred Securities will recognize gain or loss equal
to the difference between its adjusted tax basis in the Preferred Securities and
the amount realized on the sale. A Holder's adjusted tax basis in the Preferred
Securities generally will be its initial purchase price increased by original
issue discount previously includible in such Holder's gross income to the date
of disposition (and the accrual of market discount, if any) and decreased by any
amortized premium, if any, or cash payments received on the Preferred
Securities. Subject to the market discount rules described above, any such gain
or loss generally will be capital gain or loss and will be long-term capital
gain or loss if at the time of sale the Preferred Securities have been held for
more than one year.
The Preferred Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the underlying
Subordinated Notes. A Holder disposing of its Preferred Securities between
record dates for payments of distributions thereon will be required to include
accrued but unpaid interest through the date of disposition in income as
ordinary income (i.e. OID), and to add such amount to its adjusted tax basis in
its Preferred Securities. To the extent the selling price is less than the
Holder's adjusted tax basis (which will include, in the form of OID, all accrued
but unpaid interest), a Holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
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INFORMATION REPORTING TO HOLDERS
Subject to the qualifications discussed below, income on the Preferred
Securities will be reported to Holders on Form 1099, which forms should be
mailed to Holders of Preferred Securities by January 31 following each calendar
year.
The Trust will be obligated to report annually to Cede & Co., as Holder of
record of the Preferred Securities, the OID with respect to the Preferred
Securities that accrued during that year. The Trust currently intends to report
such information on Form 1099 prior to January 31 following each calendar year
even though the Trust is not legally required to report to record Holders until
April 15 following each calendar year. The Underwriters have indicated to the
Trust that, to the extent that they hold Preferred Securities as nominees for
beneficial Holders, they currently expect to report the OID that accrued during
the calendar year on such Preferred Securities to such beneficial Holders on
Forms 1099 by January 31 following each calendar year. Under current law,
Holders of Preferred Securities who hold as nominees for beneficial Holders will
not have any obligation to report information regarding the beneficial Holders
to the Trust. The Trust, moreover, will not have any obligation to report to
beneficial Holders who are not also record holders. Thus, beneficial Holders of
Preferred Securities who hold their Preferred Securities through the
Underwriters will receive Forms 1099 reflecting the income on their Preferred
Securities from such nominee Holders rather than the Trust.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Preferred Securities
may be subject to a "backup" withholding tax of 31% unless the Holder complies
with certain identification requirements. Any withheld amounts will be allowed
as a credit against the Holder's federal income tax, provided that required
information is provided to the Service.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement"), the Trust has agreed to sell to each of the
underwriters named below (the "Underwriters"), and each of the Underwriters, for
whom Merrill Lynch, Pierce, Fenner & Smith Incorporated is acting as
representative (the "Representative"), has severally agreed to purchase the
number of Preferred Securities set forth opposite its name below. In the
Underwriting Agreement, the several Underwriters have agreed, subject to the
terms and conditions set forth therein, to purchase all of the Preferred
Securities offered hereby if any of the Preferred Securities are purchased. In
the event of default by an Underwriter, the Underwriting
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Agreement provides that, in certain circumstances, the purchase commitments of
the nondefaulting Underwriters may be increased or the Underwriting Agreement
may be terminated.
NUMBER OF
UNDERWRITER PREFERRED SECURITIES
-------------------------------------------------------------- --------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated............
Dean Witter Reynolds Inc. ....................................
A.G. Edwards & Sons, Inc. ....................................
First of Michigan Corporation.................................
Roney & Co....................................................
------
Total..................................................
======
The Underwriters propose to offer the Preferred Securities in part directly
to the public at the initial public offering price, as set forth on the cover
page of this Prospectus, and in part to certain securities dealers at such price
less a concession of $ per Preferred Security. The Underwriters may allow,
and such dealers may reallow, a concession not in excess of $ per
Preferred Security to certain brokers and dealers. After the Preferred
Securities are released for sale to the public, the offering price and other
selling terms may from time to time be varied by the Representative.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Notes of Consumers, the
Underwriting Agreement provides that Consumers will agree to pay as compensation
("Underwriters' Compensation") to the Underwriters for the Underwriters'
arranging the investment therein of such proceeds, an amount in New York
Clearing House (next day) funds of $ per Preferred Security (or $ in
the aggregate) for the accounts of the several Underwriters, provided that such
compensation for sales of 10,000 or more Preferred Securities to any single
purchaser will be $ per Preferred Security. Therefore, to the extent of
such sales, the actual amount of Underwriters' Compensation will be less than
the aggregate amount specified in the preceding sentence.
During a period of 30 days from the date of the pricing of the Preferred
Securities, neither the Trust nor Consumers will, without the prior written
consent of the Representative, directly or indirectly, sell, offer to sell,
contract to sell, grant any option for the sale of, or otherwise dispose of, any
Preferred Securities, any security convertible into or exchangeable into or
exercisable for Preferred Securities or the Subordinated Notes or any debt
securities substantially similar to the Subordinated Notes or any equity
securities substantially similar to the Preferred Securities (except for the
Subordinated Notes and the Preferred Securities offered hereby).
An application will be filed with the New York Stock Exchange for the
listing of the Preferred Securities, subject to official notice of issuance. If
approved for listing, trading of the Preferred Securities on the New York Stock
Exchange is expected to commence within a 30 day period after the initial
delivery of the Preferred Securities. The Representative has advised the Trust
that the Underwriters intend to make a market in the Preferred Securities prior
to the commencement of trading on the New York Stock Exchange. The Underwriters
will have no obligation to make a market in the Preferred Securities, however,
and may cease market making activities, if commenced, at any time.
Prior to this offering, there has been no public market for the Preferred
Securities. In order to meet one of the requirements for listing the Preferred
Securities on the New York Stock Exchange, the Underwriters will undertake to
sell lots of 100 or more Preferred Securities to a minimum of 400 beneficial
holders.
Consumers and the Trust have agreed to indemnify the Underwriters against,
or to contribute to payments that the Underwriters may be required to make in
respect of, certain liabilities, including liabilities under the Securities Act.
Certain of the Underwriters engage in transactions with, and, from time to
time, have performed services for, Consumers in the ordinary course of business.
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LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of Consumers and the Trust by Richards,
Layton & Finger, P.A., special Delaware counsel to Consumers and the Trust. The
validity of the Subordinated Notes, the Preferred Securities Guarantee and
certain matters relating thereto will be passed upon on behalf of Consumers by
Denise M. Sturdy, Esq, Assistant General Counsel for Consumers. Certain legal
matters will be passed upon on behalf of the Underwriters by Reid & Priest LLP.
Certain United States federal income taxation matters will be passed upon for
Consumers and the Trust by Reid & Priest LLP.
EXPERTS
The consolidated financial statements and schedule of Consumers as of
December 31, 1994 and 1993, and for each of the three years in the period ended
December 31, 1994 included or incorporated by reference in this Prospectus have
been audited by Arthur Andersen LLP (formerly Arthur Andersen & Co.),
independent public accountants, as indicated in their reports 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.
With respect to the unaudited interim consolidated financial information
for the periods ended March 31 and June 30, 1995 and 1994, Arthur Andersen LLP
have applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report thereon states that
they did not audit and they did not express an opinion on that interim
consolidated financial information. Accordingly, the degree of reliance on their
report 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 for their report
on the unaudited interim consolidated financial information because that report
is not a "report" or "part" of the registration statement prepared or certified
by the accountants within the meanings of Sections 7 and 11 of the Securities
Act.
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------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY CONSUMERS POWER COMPANY,
CONSUMERS POWER COMPANY FINANCING I OR THE UNDERWRITERS. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF CONSUMERS POWER
COMPANY OR CONSUMERS POWER COMPANY FINANCING I, SINCE THE DATE HEREOF. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
PAGE
----
Available Information................... 3
Incorporation of Certain Documents by
Reference............................. 3
Prospectus Summary...................... 5
Risk Factors............................ 6
Consumers Power Company................. 7
Consumers Power Company Financing I..... 8
Selected Financial Information of
Consumers Power Company............... 9
Capitalization of Consumers Power
Company............................... 10
Accounting Treatment.................... 10
Use of Proceeds......................... 10
Description of the Preferred
Securities............................ 11
Description of the Preferred Securities
Guarantee............................. 20
Description of the Subordinated Notes... 23
Effect of Obligations Under the
Subordinated Notes and the Preferred
Securities Guarantee.................. 29
Certain United States Federal Income
Tax Consequences...................... 30
Underwriting............................ 33
Legal Matters........................... 34
Experts................................. 34
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
4,000,000
PREFERRED SECURITIES
CONSUMERS POWER COMPANY FINANCING I
% TRUST ORIGINATED
PREFERRED SECURITIES SM
("TOPRS SM")
GUARANTEED TO THE EXTENT SET
FORTH HEREIN
CONSUMERS POWER COMPANY
---------------------------
PROSPECTUS
---------------------------
MERRILL LYNCH & CO.
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
FIRST OF MICHIGAN CORPORATION
RONEY & CO.
, 1995
------------------------------------------------------
------------------------------------------------------
38
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
AMOUNT
-----------
Securities and Exchange Commission filing fee.................... $ 34,482.76
New York Stock Exchange listing fee.............................. 22,150.00
Rating Agency fees............................................... 83,000.00
Trustees expenses................................................ 15,000.00
Printing and engraving fees...................................... 200,000.00
Accounting fees and expenses..................................... 5,000.00
Legal fees and expenses.......................................... 35,000.00
Miscellaneous.................................................... 10,500.00
-----------
Total....................................................... $405,132.76
===========
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
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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.
Sec. 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.
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(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.
Sec. 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
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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, personal representatives, 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.
Section 10.4 of the Declaration of Trust provides that:
(a)(i) Consumers shall indemnify, to the full extent permitted by law,
any Company Indemnified Person (as defined therein) who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
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of the Trust, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) Consumers shall indemnify, to the full extent permitted by law,
any Company Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or
in the right of the Trust to procure a judgment in its favor by reason of
the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as
to which such Company Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which such
Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of Section 10.4(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of Section
10.4(a) (unless ordered by a court) shall be made by Consumers only as
authorized in the specific case upon a determination that indemnification
of the Company Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or
(3) by the Common Security Holder of the Trust.
(v) To the fullest extent permitted by applicable law, expenses
(including attorneys' fees) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit
or proceeding referred to in paragraphs (i) and (ii) of Section 10.4(a)
shall be paid by Consumers in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf
of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
Consumers as authorized in Section 10.4(a). Notwithstanding the foregoing,
no advance shall be made by Consumers if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
Common Security Holder of the Trust, that, based upon the facts known to
the Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees, independent legal
counsel or Common Security Holder reasonably determine that such person
deliberately breached his duty to the Trust or its Common or Preferred
Security Holders.
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(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of Section 10.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification
and advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of Consumers or Preferred Security
Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
All rights to indemnification under Section 10.4(a) shall be deemed to be
provided by a contract between Consumers and each Company Indemnified
Person who serves in such capacity at any time while Section 10.4(a) is in
effect. Any repeal or modification of Section 10.4(a) shall not affect any
rights or obligations then existing.
(vii) Consumers or the Trust may purchase and maintain insurance on
behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not Consumers would have the
power to indemnify him against such liability under the provisions of
Section 10.4(a).
(viii) For purposes of Section 10.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of Section 10.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) Consumers agrees to indemnify the (i) Property Trustee, (ii) the
Delaware Trustee, (iii) any affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for,
and to hold each Fiduciary Indemnified Person harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration.
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ITEM 16. EXHIBITS.
The following exhibits are filed herewith.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- ----------------------------------------------------------------------------------
(1) -- Form of Underwriting Agreement (to be filed as an Exhibit to a report on Form 8-K
which shall be incorporated herein by reference).
(4)-1 -- Certificate of Trust of the Trust.
(4)-2 -- Form of Amended and Restated Declaration of Trust.
(4)-3 -- Form of Indenture between Consumers and The Bank of New York, as Trustee.
(4)-4 -- Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Subordinated Notes.
(4)-5 -- Form of Preferred Security (included in (4)-2).
(4)-6 -- Form of Subordinated Note Security (included in (4)-4).
(4)-7 -- Form of Preferred Securities Guarantee Agreement.
(5)-1 -- Opinion re legality of Preferred Securities.
(5)-2 -- Opinion re legality of Subordinated Notes and the Preferred Securities Guarantee.
(8) -- Opinion re tax matters.
(12) -- Statement re Computation of Ratios of Earnings to Fixed Charges and Ratios of
Earnings to Fixed Charges and Preferred and Preference Stock Dividend
Requirements.
(15) -- Letter re unaudited interim financial information
(23)-1 -- Consent of Richards, Layton & Finger, P.C. (included in (5)-1).
(23)-2 -- Consent of Denise M. Sturdy, Esq. (included in (5)-2).
(23)-3 -- Consent of Reid & Priest LLP (included in (8)).
(23)-4 -- Consent of Arthur Andersen LLP.
(24) -- Powers of attorney of Directors whose names are signed to this registration
statement pursuant to such powers and resolution.
(25)-1 -- Statement of Eligibility of Property Trustee.
(25)-2 -- Statement of Eligibility of Debt Trustee.
(25)-3 -- Statement of Eligibility of Preferred Guarantee Trustee.
ITEM 17. UNDERTAKINGS.
The Undersigned Registrants Hereby Undertake:
(1) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(2) That for purposes of determining any liability under the
Securities Act, 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 registrants pursuant to Rule
424(b)(1) or (4) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
(3) That for purposes of determining any liability under the
Securities Act, 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.
(4) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions described in Item 15
above, or otherwise, the registrants have been advised that in the opinion
of the Commission such
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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 a registrant of
expenses incurred or paid by a director, officer or controlling person of
such 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, such 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.
(5) The undersigned Trust registrant hereby undertakes to provide to
the underwriters at the closing specified in the underwriting agreement
certificates in such denominations and registered in such names as required
by the underwriters to permit prompt delivery to each purchaser.
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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 31st day of
October, 1995.
CONSUMERS POWER COMPANY
By: /s/ A. M. WRIGHT
----------------------------------
A. M. Wright
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the 31st day of October, 1995.
NAME TITLE
- --------------------------------------------- ----------------------------------
(i) Principal executive officer:
/s/ MICHAEL G. MORRIS President and
- --------------------------------------------- Chief Executive Officer
Michael G. Morris
(ii) Principal financial officer:
/s/ A M WRIGHT Senior Vice President and
- --------------------------------------------- Chief Financial Officer
Alan M. Wright
(iii) Controller or principal
accounting officer:
/s/ DENNIS DAPRA Vice President and
- --------------------------------------------- Controller
Dennis DaPra
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NAME TITLE
---- -----
Director
- ---------------------------------------------
(James J. Duderstadt)
* Director
- ---------------------------------------------
(Kathleen R. Flaherty)
* Director
- ---------------------------------------------
(Victor J. Fryling)
* Director
- ---------------------------------------------
(Earl D. Holton)
* Director
- ---------------------------------------------
(Lois A. Lund)
* Director
- ---------------------------------------------
(Frank H. Merlotti)
* Director
- ---------------------------------------------
(William T. McCormick, Jr.)
* Director
- ---------------------------------------------
(William U. Parfet)
* Director
- ---------------------------------------------
(Percy A. Pierre)
* Director
- ---------------------------------------------
(S. Kinnie Smith, Jr.)
* Director
- ---------------------------------------------
(Kenneth Whipple)
* Director
- ---------------------------------------------
(John B. Yasinsky)
*By /s/ A M WRIGHT
-----------------------------------------
Alan M. Wright
Attorney-in-fact
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Consumers Power
Company Financing I certifies that is has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jackson, State of Michigan, on the 31st day of
October, 1995.
CONSUMERS POWER COMPANY FINANCING I
By /s/ A. M. WRIGHT
------------------------------------
Trustee
By /s/ THOMAS A. MCNISH
------------------------------------
Trustee
By /s/ DORIS F. GALVIN
------------------------------------
Trustee
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EXHIBIT INDEX
The following exhibits are filed herewith.
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF DOCUMENT PAGE
- ------- ------------------------------------------------------------------------ ----------
(1) -- Form of Underwriting Agreement (to be filed as an Exhibit to a report on
Form 8-K which shall be incorporated herein by reference).
(4)-1 -- Certificate of Trust of the Trust.
(4)-2 -- Form of Amended and Restated Declaration of Trust.
(4)-3 -- Form of Indenture between Consumers and The Bank of New York, as
Trustee.
(4)-4 -- Form of Supplemental Indenture to Indenture to be used in connection
with the issuance of Subordinated Notes.
(4)-5 -- Form of Preferred Security (included in (4)-2).
(4)-6 -- Form of Subordinated Note Security (included in (4)-4).
(4)-7 -- Form of Preferred Securities Guarantee Agreement.
(5)-1 -- Opinion re legality of Preferred Securities.
(5)-2 -- Opinion re legality of Subordinated Notes and the Preferred Securities
Guarantee.
(8) -- Opinion re tax matters.
(12) -- Statement re Computation of Ratios of Earnings to Fixed Charges and
Ratios of Earnings to Fixed Charges and Preferred and Preference Stock
Dividend Requirements.
(15) -- Letter re unaudited interim financial information.
(23)-1 -- Consent of Richards, Layton & Finger, P.C. (included in (5)-1).
(23)-2 -- Consent of Denise M. Sturdy, Esq. (included in (5)-2).
(23)-3 -- Consent of Reid & Priest LLP (included in (8)).
(23)-4 -- Consent of Arthur Andersen LLP.
(24) -- Powers of attorney of Directors whose names are signed to this
registration statement pursuant to such powers.
(25)-1 -- Statement of Eligibility of Property Trustee.
(25)-2 -- Statement of Eligibility of Debt Trustee.
(25)-3 -- Statement of Eligibility of Preferred Guarantee Trustee.