SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1994
---------------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-2987.
NIAGARA MOHAWK POWER CORPORATION
--------------------------------
(Exact name of registrant as specified in its charter)
State of New York 15-0265555
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
300 Erie Boulevard West Syracuse, New York
13202
(Address of principal executive offices) (Zip
Code)
(315) 474-1511
Registrant's telephone number, including area code
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Common stock, $1 par value, outstanding
at April 30, 1994 - 142,778,785
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
FORM 10-Q - For The Quarter Ended March 31, 1994
INDEX
Part I. Financial Information Page
Item 1. Financial Statements.
a) Consolidated Statements of Income -
Three Months Ended March 31, 1994 and 1993 3
b) Consolidated Balance Sheets - March 31,
1994 and December 31, 1993 4
c) Consolidated Statements of Cash Flows -
Three Months Ended March 31, 1994 and 1993 6
d) Notes to Consolidated Financial Statements 7
e) Review by Independent Accountants 14
f) Independent Accountants' Report on the
Limited Review of the Interim Financial
Information 15
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations. 16
Part II. Other Information
Item 1. Legal Proceedings. 27
Item 4. Submission of Matters to a Vote
of Security Holders. 28
Item 5. Other Events. 28
Item 6. Exhibits and Reports on Form 8-K. 32
Signature 33
PART 1. FINANCIAL INFORMATION
-----------------------------
ITEM 1. FINANCIAL STATEMENTS.
-----------------------------
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
---------------------------------------------------------
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
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THREE MONTHS ENDED MARCH 31,
---------------------------
1994 1993
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(In thousands of dollars)
OPERATING REVENUES:
Electric $ 933,717 $ 876,625
Gas 301,841 259,414
1,235,558 1,136,039
OPERATING EXPENSES:
Operation:
Fuel for electric generation 62,125 64,348
Electricity purchased 275,360 206,192
Gas purchased 175,084 155,003
Other operation expense 172,684 194,827
Maintenance 47,493 50,330
Depreciation and amortization 75,406 67,662
Federal and foreign income taxes 88,304 81,455
Other taxes 135,754 128,553
1,032,210 948,370
OPERATING INCOME 203,348 187,669
OTHER INCOME AND (DEDUCTIONS):
Allowance for other funds used
during construction 765 2,071
Federal and foreign income taxes 2,340 3,649
Other items (net) 2,966 4,472
6,071 10,192
INCOME BEFORE INTEREST CHARGES 209,419 197,861
INTEREST CHARGES:
Interest on long-term debt 68,584 70,102
Other interest 3,985 3,109
Allowance for borrowed funds used
during construction (1,614) (2,306)
70,955 70,905
NET INCOME 138,464 126,956
Dividends on preferred stock 7,016 8,299
BALANCE AVAILABLE FOR COMMON STOCK $ 131,448 $ 118,657
Average number of shares of common
stock outstanding
(in thousands) 142,498 137,208
Balance available per average
share of common stock $ .92 $ .86
Dividends paid per share of common
stock .25 .20
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
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CONSOLIDATED BALANCE SHEETS
---------------------------
MARCH 31,
1994 DECEMBER 31,
(UNAUDITED) 1993
------------ ------------
(In thousands of dollars)
UTILITY PLANT:
Electric plant $ 8,082,027 $7,991,346
Nuclear fuel 457,502 458,186
Gas plant 860,947 845,299
Common plant 268,028 244,294
Construction work in progress 480,601 569,404
Total utility plant 10,149,105 10,108,529
Less-Accumulated depreciation and
amortization 3,295,194 3,231,237
Net utility plant 6,853,911 6,877,292
OTHER PROPERTY AND INVESTMENTS 243,079 221,008
CURRENT ASSETS:
Cash, including temporary cash investments
of $86,923 and $100,182, respectively 168,897 124,351
Accounts receivable (less-allowance for
doubtful accounts of $3,600) 351,519 258,137
Unbilled revenues 192,500 197,200
Electric margin recoverable 32,047 21,368
Materials and supplies, at average cost:
Coal and oil for production of electricity 27,120 29,469
Gas storage 3,018 31,689
Other 166,479 163,044
Prepaid taxes 87,146 23,879
Prepaid pension expense 39,933 37,238
Other prepayments 27,487 29,498
1,096,146 915,873
REGULATORY AND OTHER ASSETS:
Unamortized debt expense 153,473 154,210
Deferred recoverable energy costs 39,483 67,632
Deferred finance charges 239,880 239,880
Income taxes recoverable (Note 1) 527,995 527,995
Recoverable environmental restoration costs 240,000 240,000
Other 188,103 175,187
1,388,934 1,404,904
$ 9,582,070 $9,419,077
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
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CONSOLIDATED BALANCE SHEETS
---------------------------
CAPITALIZATION AND LIABILITIES
------------------------------
MARCH 31,1994 DECEMBER 31,
(UNAUDITED) 1993
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(In thousands of dollars)
CAPITALIZATION:
COMMON STOCKHOLDERS' EQUITY:
Common stock - $1 par value; authorized
150,000,000 shares; issued 142,706,358 and
142,427,057 shares, respectively $ 142,706 $ 142,427
Capital stock premium and expense 1,762,908 1,762,706
Retained earnings 647,171 551,332
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2,552,785 2,456,465
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CUMULATIVE PREFERRED STOCK, AUTHORIZED 3,400,000
SHARES, $100 PAR VALUE:
Non-redeemable (optionally redeemable),
issued 2,100,000 shares 210,000 210,000
Redeemable (mandatorily redeemable), issued
294,000 shares 27,600 27,600
CUMULATIVE PREFERRED STOCK, AUTHORIZED 19,600,000
SHARES, $25 PAR VALUE:
Non-redeemable (optionally redeemable),
issued 3,200,000 shares 80,000 80,000
Redeemable (mandatorily redeemable), issued
4,840,005 shares 95,600 95,600
413,200 413,200
Long-term debt 3,261,159 3,258,612
Total capitalization 6,227,144 6,128,277
CURRENT LIABILITIES:
Short-term debt 177,001 368,016
Long-term debt due within one year 414,084 216,185
Sinking fund requirements on redeemable
preferred stock 27,200 27,200
Accounts payable 231,208 299,209
Payable on outstanding bank checks 24,662 35,284
Customers' deposits 14,182 14,072
Accrued taxes 134,666 56,382
Accrued interest 80,045 70,529
Accrued vacation pay 41,040 40,178
Other 100,070 82,145
1,244,158 1,209,200
REGULATORY AND OTHER LIABILITIES:
Accumulated deferred income taxes (Note 1) 1,344,701 1,313,483
Deferred finance charges 239,880 239,880
Unbilled revenues 90,268 94,968
Deferred pension settlement gain 59,277 62,282
Customers refund for replacement power cost
disallowance 17,311 23,081
Other 119,331 107,906
1,870,768 1,841,600
COMMITMENTS AND CONTINGENCIES (NOTE 2):
Liability for environmental restoration 240,000 240,000
$9,582,070 $9,419,077
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
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CONSOLIDATED STATEMENTS OF CASH FLOWS
-------------------------------------
INCREASE (DECREASE) IN CASH (UNAUDITED)
----------------------------------------
THREE MONTHS ENDED MARCH 31,
1994 1993
------------- ------------
(In thousands of dollars)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 138,464 $ 126,956
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 75,406 67,662
Amortization of nuclear fuel 9,601 7,800
Provision for deferred Federal income taxes 31,218 13,538
Electric margin recoverable (10,679) (20,688)
Allowance for other funds used during construction (765) (2,071)
Deferred recoverable energy costs 28,149 25,853
Amortization of nuclear replacement power cost
disallowance (5,770) (5,930)
Increase in net accounts receivable (93,382) (75,720)
Decrease in materials and supplies 28,959 51,097
Decrease in accounts payable and accrued expenses (62,131) (84,625)
Increase in accrued interest and taxes 87,800 70,986
Changes in other assets and liabilities (46,052) (20,498)
NET CASH PROVIDED BY OPERATING ACTIVITIES 180,818 154,360
CASH FLOWS FROM INVESTING ACTIVITIES:
Construction additions (64,815) (71,010)
Less: Allowance for other funds used during
construction 765 2,071
Acquisition of utility plant (64,050) (68,939)
(Increase) decrease in materials and supplies
related to construction (1,374) (648)
Decrease in accounts payable and accrued
expenses related to construction (15,533) (21,156)
Increase in other investments (21,841) (3,145)
Other (3,045) 752
NET CASH USED IN INVESTING ACTIVITIES (105,843) (93,136)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from the sale of common stock 5,203 2,855
Issuance of long-term debt 210,000 -
Net change in short-term debt and revolving
credit agreements (191,015) (29,187)
Dividends paid (42,625) (35,733)
Reductions in long-term debt (8,414) (4,683)
Other (3,578) (347)
NET CASH USED IN FINANCING ACTIVITIES (30,429) (67,095)
NET INCREASE (DECREASE) IN CASH 44,546 (5,871)
Cash at beginning of period 124,351 43,894
CASH AT END OF PERIOD $ 168,897 $ 38,023
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Interest paid $ 64,987 $ 65,732
Income taxes paid 11,308 9,373
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The Company, in the opinion of management, has included
adjustments (which include normal recurring adjustments)
necessary for a fair statement of the results of operations
for the interim periods presented. The consolidated
financial statements for 1994 are subject to adjustment at
the end of the year when they will be audited by
independent accountants. The consolidated financial
statements and notes thereto should be read in conjunction
with the financial statements and notes for the years ended
December 31, 1993, 1992 and 1991 included in the Company's
1993 Annual Report to Shareholders on Form 10-K.
The Company's electric sales tend to be substantially
higher in summer and winter months as related to weather
patterns in its service territory; gas sales tend to peak
in the winter. Notwithstanding other factors, the
Company's quarterly net income will generally fluctuate
accordingly. Therefore, the earnings for the three-month
period ended March 31, 1994, should not be taken as an
indication of earnings for all or any part of the balance
of the year.
Certain amounts have been reclassified on the accompanying
Consolidated Financial Statements to conform with the 1994
presentation.
2. Contingencies.
Environmental issues: The public utility industry
typically utilizes and/or generates in its operations a
broad range of potentially hazardous wastes and by-
products. These wastes or by-products may not have
previously been considered hazardous, and may not be
considered hazardous currently, but may be identified as
such by Federal, state or local authorities in the future.
The Company believes it is handling identified wastes and
by-products in a manner consistent with Federal, state and
local requirements and has implemented an environmental
audit program to identify any potential areas of concern
and assure compliance with such requirements. The Company
is also currently conducting a program to investigate and
restore, as necessary to meet current environmental
standards, certain properties associated with its former
gas manufacturing process and other properties which the
Company has learned may be contaminated with industrial
7
waste, as well as investigating identified industrial waste
sites as to which it may be determined that the Company
contributed. The Company has been advised that various
Federal, state or local agencies believe that certain
properties require investigation and has prioritized the
sites based on available information in order to enhance
the management of investigation and remediation, if
determined to be necessary.
The Company is currently aware of 89 sites with which it
has been or may be associated, including 49 which are
Company-owned. The Company-owned sites include 23 former
coal gasification (MGP) sites, 15 industrial waste sites
and 11 operating property sites where corrective actions
may be deemed necessary to prevent, contain and/or
remediate contamination of soil and/or water in the
vicinity. Of these Company-owned sites, Saratoga Springs
is on the Federal National Priorities List for Uncontrolled
Hazardous Waste Sites (NPL) published by the Environmental
Protection Agency (EPA). The 40 non-owned sites with which
the Company has been or may be associated are generally
industrial disposal waste sites where some of the disposed
waste materials are alleged to have originated from the
Company's operations. Pending the results of
investigations, the Company may be required to contribute
some proportionate share of remedial costs. Not included
in the 89 sites are seven sites for which the Company has
reached final settlement agreements with other potentially
responsible parties (PRP) and three sites where remediation
activities have been completed. The Company is also aware
of approximately 20 formerly-owned MGP sites with which the
Company has been or may be associated and which may require
future investigation and possible remediation. Also,
approximately 11 fire training sites used by the Company
have been identified but not investigated. Presently, the
Company has not determined its potential involvement with
such sites and has made no provision for potential
liabilities associated therewith.
Investigations at each of the Company-owned sites are
designed to (1) determine if environmental contamination
problems exist, (2) determine the extent, rate of movement
and concentration of pollutants, (3) if necessary,
determine the appropriate remedial actions required for
site restoration and (4) where appropriate, identify other
parties who should bear some or all of the cost of
remediation. Legal action against such other parties, if
necessary, will be initiated. After site investigations
have been completed, the Company expects to determine site-
specific remedial actions necessary and to estimate the
attendant costs for restoration. However, since
technologies are still developing and the Company has not
8
yet undertaken any full-scale remedial actions following
regulatory requirements at any identified sites, nor have
any detailed remedial designs been prepared or submitted to
appropriate regulatory agencies, the ultimate cost of
remedial actions may change substantially as investigation
and remediation progresses.
The Company estimates that 43 of the 49 owned sites will
require some degree of remediation and post-remedial
monitoring. This conclusion is based upon a number of
factors, including the nature of the identified or
potential contaminants, the location and size of the site,
the proximity of the site to sensitive resources, the
status of regulatory investigation and knowledge of
activities at similarly situated sites. Although the
Company has not extensively investigated many of those
sites, it believes it has sufficient information to
estimate a range of cost of investigation and remediation.
As a consequence of site characterizations and assessments
completed to date, the Company has accrued a liability of
$210 million for these owned sites, representing the low
end of the range of the estimated cost for investigation
and remediation. The high end of the range is presently
estimated at approximately $520 million.
The majority of these cost estimates relate to the MGP
sites. Of the 23 MGP sites, the Harbor Point (Utica, NY)
and Saratoga Springs sites are being investigated and
remediated pursuant to separate regulatory Consent Orders.
The remaining 21 MGP sites are the subject of an Order on
Consent executed with the New York State Department of
Environmental Conservation (DEC) providing for an
investigation and remediation program over approximately
ten years. Preliminary site assessments have been
conducted or are in process at five of these 21 sites, with
remedial investigations either currently in process or
scheduled for 1994. Remedial investigations have been
conducted for two industrial waste sites and for three
operating properties where corrective actions were
considered necessary.
The Company recently completed preliminary assessments at
the fire training sites which it owns and determined five
sites will require further investigation. These sites and
the costs to investigate them are included in the sites
discussed above and the amounts accrued at March 31, 1994.
The Company does not currently believe that a clean-up will
be required at the six remaining Company-owned sites,
although some degree of investigation of these sites is
included in its investigation and remediation program.
9
With respect to the 40 sites with which the Company has
been or may be associated as a PRP, nine are listed on the
NPL. Total costs to investigate and remediate these sites
are estimated to be approximately $590 million; however,
the Company estimates its share of this total at
approximately $30 million and this amount has been accrued
at March 31, 1994.
The seven sites for which final settlement agreements have
been executed resulted in payment by the Company of amounts
not considered to be material. Two of these sites (Ludlow
Landfill and Wide Beach) are listed on the NPL; the
Company's aggregate liability for both was established in
an amount less than $300,000. For the 9 sites included on
the NPL, the Company's potential contribution factor varies
for each site. The estimated aggregate liability for these
sites is not material and is included in the determination
of the amounts accrued.
Estimates of the Company's potential liability for sites
not owned by the Company, but for which the Company has
been identified as a PRP, have been derived by estimating
the total cost of site clean-up and then applying the
related Company contribution factor to that estimate.
Estimates of the total clean-up costs are determined by
using all available information from investigations
conducted to date, negotiations with other PRPs and, where
no other basis is available at the time of estimate, the
EPA figure for average cost to remediate a site listed on
the NPL as disclosed in the Federal Register of June 23,
1993 (58 FR No. 119). The contribution factor is then
calculated using either a per capita share based upon the
total number of PRPs named or otherwise identified, which
assumes all PRPs will contribute equally, or the percentage
agreed upon with other PRPs through steering committee
negotiations or by other means. Actual Company
expenditures for these sites are dependent upon the total
cost of investigation and remediation and the ultimate
determination of the Company's share of responsibility for
such costs as well as the financial viability of other
identified responsible parties since clean-up obligations
are joint and several. The Company has denied any
responsibility in certain of these PRP sites and is
contesting liability accordingly.
The EPA advised the Company by letter that it is one of 833
PRPs under Superfund for the investigation and cleanup of
the Maxey Flats Nuclear Disposal Site in Morehead,
Kentucky. The Company has contributed to a study of this
site and estimates that the cost to the Company for its
share of investigation and remediation based on its
contribution factor of 1.3% would approximate $1 million,
10
which the Company believes will be recoverable in the
ratesetting process.
On July 21, 1988, the Company received notice of a motion
by Reynolds Metals Company to add the Company as a third
party defendant in an ongoing Superfund lawsuit in Federal
District Court, Northern District of New York. This suit
involves PCB oil contamination at the York Oil Site in
Moira, New York. Waste oil was transported to the site
during the 1960's and 1970's by contractors of Peirce Oil
Company (owners/operators of the site) who picked up waste
oil at locations throughout Central New York, allegedly
including one or more Company facilities. On May 26, 1992,
the Company was formally served in a Federal Court action
initiated by the government against 8 additional
defendants. Pursuant to the requirements of a case
management order issued by the Court on March 13, 1992, the
Company has also been served in related third and fourth-
party actions for contribution initiated by other
defendants. These actions have been consolidated into a
single action filed in February 1994 by the federal
government against several entities, including the Company,
which did not accept the government's final terms of
settlement. The Company intends to vigorously oppose and
defend against the government's characterization of its
liability in this matter.
The Company believes that costs incurred in the
investigation and restoration process for both Company-
owned sites and sites with which it is associated will be
recoverable in the ratesetting process. Rate agreements in
effect since 1991 provide for recovery of anticipated
investigation and remediation expenditures. The Company's
1994 rate settlement includes $21.7 million for site
investigation and remediation. The Staff of the New York
State Public Service Commission (PSC Staff) reserves the
right to review the appropriateness of the costs incurred.
While the PSC Staff has not challenged any remediation
costs to date, the PSC Staff asserted in the recently-
decided gas rate proceeding that the Company must, in
future rate proceedings, justify why it is appropriate that
remediation costs associated with non-utility property
owned by the Company be recovered from ratepayers. Based
upon management's assessment that remediation costs will be
recovered from ratepayers, a regulatory asset has been
recorded representing the future recovery of remediation
obligations accrued to date.
The Company also agreed in rate agreements to a cost
sharing arrangement with respect to one industrial waste
site. The Company does not believe that this cost sharing
agreement, as it relates to this particular industrial
11
waste site, will have a material effect on the Company's
financial position or results of operations.
The Company is also in the process of providing notices of
insurance claims to carriers with respect to the
investigation and remediation costs for manufactured gas
plant and industrial waste sites. The Company is unable to
predict whether such insurance claims will be successful.
Tax assessments: The Internal Revenue Service (IRS) has
conducted an examination of the Company's Federal income
tax returns for the years 1987 and 1988 and has submitted a
Revenue Agents' Report to the Company. The IRS has
proposed various adjustments to the Company's federal
income tax liability for these years which could increase
the Federal income tax liability by approximately $80
million before assessment of penalties and interest.
Included in these proposed adjustments are several
significant issues involving Nine Mile Point Nuclear
Station Unit 2 (Unit 2). The Company is vigorously
defending its position on each of the issues, and submitted
a protest to the IRS in 1993. Pursuant to the Unit 2
settlement entered into with the New York State Public
Service Commission (PSC) in 1990, to the extent the IRS is
able to sustain disallowances, the Company will be required
to absorb a portion of any disallowance. The Company
believes any such disallowance will not have a material
impact on its financial position or results of operations.
Litigation: On March 22, 1993, a complaint was filed in
the Supreme Court of the State of New York, Albany County
against the Company and certain of its officers and
employees. The plaintiff, Inter-Power of New York, Inc.
("Inter-Power"), alleges, among other matters, fraud,
negligent misrepresentation and breach of contract in
connection with the Company's alleged termination of a
power purchase agreement in January 1993. The power
purchase agreement was entered into in early 1988 in
connection with a 200 MW cogeneration project to be
developed by Inter-Power in Halfmoon, New York. The
plaintiff is seeking enforcement of the original contract
or compensatory and punitive damages on fourteen causes of
action in an aggregate amount that would not exceed $1
billion, excluding pre-judgment interest.
The Company believes it has done no wrong and intends to
vigorously defend against this action. On May 7, 1993, the
Company filed an answer denying liability and raising
certain affirmative defenses. Thereafter, the Company and
Inter-Power filed cross-motions for summary judgment. The
court dismissed two of Inter-Power's fourteen causes of
action but otherwise denied the Company's motion. The
12
court also dismissed two of the Company's affirmative
defenses and otherwise denied Inter-Power's cross-motion.
Inter-Power has appealed the dismissal of its two causes of
action, and the Company has appealed the denial of its
motion to dismiss the remaining twelve causes of action.
On March 23, 1994, the Company filed a new summary judgment
motion, which remains pending with the court. The ultimate
outcome of the litigation cannot presently be determined.
On November 12, 1993, Fourth Branch Associates
Mechanicville ("Fourth Branch") filed suit against the
Company and several of its officers and employees in the
New York Supreme Court, Albany County, seeking compensatory
damages of $50 million, punitive damages of $100 million
and injunctive and other related relief. The suit grows
out of the Company's termination of a contract for Fourth
Branch to operate and maintain a hydroelectric plant the
Company owns in the Town of Halfmoon, New York. Fourth
Branch's complaint also alleges claims based on the
inability of Fourth Branch and the Company to agree on
terms for the purchase of power from a new facility that
Fourth Branch hoped to construct at the Mechanicville site.
On January 3, 1994, the defendants filed a joint motion to
dismiss Fourth Branch's complaint. This motion has yet to
be decided. On March 16, 1994, the Court denied Fourth
Branch's motion for preliminary judgment. The Company also
notified Fourth Branch by letter dated March 1, 1994, that
the Licensing Agreement between Fourth Branch and the
Company is terminated. On March 15, 1994, Fourth Branch
petitioned the FERC for Extraordinary Relief. The Company
has opposed this petition before the FERC. On March 18,
1994, Fourth Branch filed a petition for bankruptcy and, on
April 4, 1994, the bankruptcy court granted relief from the
automatic bankruptcy stay to allow the pending litigation
to go forward. On April 27, 1994, the Company served an
answer and counterclaim in the Albany Supreme Court
litigation seeking $1 million in damages and removal of
Fourth Branch from the Mechanicville site. The Company
believes that it has substantial defenses to Fourth
Branch's claims, but is unable to predict the outcome of
this litigation.
Accordingly, no provision for liability, if any, that may
result from either of these suits has been made in the
Company's financial statements.
13
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
REVIEW BY INDEPENDENT ACCOUNTANTS
The Company's independent accountants, Price Waterhouse, have
made limited reviews (based on procedures adopted by the American
Institute of Certified Public Accountants) of the unaudited
Consolidated Balance Sheet of Niagara Mohawk Power Corporation
and Subsidiary Companies as of March 31, 1994 and the unaudited
Consolidated Statements of Income and Cash Flows for the three-
month periods ended March 31, 1994 and 1993. The accountants'
report regarding their limited reviews of the Form 10-Q of
Niagara Mohawk Power Corporation and its subsidiaries appears on
the next page. That report does not express an opinion on the
interim unaudited consolidated financial information. Price
Waterhouse has not carried out any significant or additional
audit tests beyond those which would have been necessary if their
report had not been included. Accordingly, such report is not a
"report" or "part of the Registration Statement" within the
meaning of Sections 7 and 11 of the Securities Act of 1933 and
the liability provisions of Section 11 of such Act do not apply.
14
PRICE WATERHOUSE
ONE MONY PLAZA
SYRACUSE NY 13202
TELEPHONE 315-474-6571
REPORT OF INDEPENDENT ACCOUNTANTS
May 12, 1994
To the Stockholders and Board of Directors of
Niagara Mohawk Power Corporation
300 Erie Boulevard West
Syracuse NY 13202
We have reviewed the condensed consolidated balance sheet of
Niagara Mohawk Power Corporation and its subsidiaries as of
March 31, 1994, and the related condensed consolidated statements
of income and cash flows for the three-month periods ended
March 31, 1994 and 1993. These financial statements are the
responsibility of the Company's management.
We conducted our review in accordance with standards established
by the American Institute of Certified Public Accountants. A
review of interim financial information consists principally of
applying analytical procedures to financial data and making
inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion
regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material
modifications that should be made to the condensed consolidated
financial statements referred to above for them to be in
conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet at December
31, 1993, and the related consolidated statements of income,
retained earnings and cash flows for the year then ended (not
presented herein); and in our report dated January 27, 1994, we
expressed an unqualified opinion (containing an explanatory
paragraph relating to the Company's involvement as a defendant in
lawsuits relating to actions with respect to certain purchased
power contracts) on those consolidated financial statements. In
our opinion, the information set forth in the accompanying
condensed consolidated balance sheet as of December 31, 1993 is
fairly stated, in all material respects, in relation to the
consolidated balance sheet from which it has been derived.
/s/ Price Waterhouse
-------------------
15
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Financial Position, Liquidity and Capital Resources
1994 Rate Agreement
On February 2, 1994, the PSC approved an increase in gas rates of
$10.4 million or 1.7%. To comply with this rate order, the
Company filed tariffs with an effective date of February 12,
1994. The Company was allowed to collect the revised rates
retroactive to January 1, 1994, through the implementation of a
surcharge factor. The rate order also permitted the Company to
implement for the first time a weather normalization clause with
an effective date of February 12, 1994. The gas weather
normalization clause was not ordered to be implemented on a
retroactive basis and therefore had very little impact on
financial condition and results of operations for the first
quarter of 1994.
The PSC also approved the Company's electric supplement agreement
with the Staff of the New York State Public Service Commission
(PSC Staff) and other parties to extend certain cost recovery
mechanisms in the 1993 Rate Agreement without increasing electric
base rates for calendar year 1994. An order has not yet been
issued for PSC approval of the electric or gas cases. The goal
of the supplement is to keep total electric bill impacts for 1994
at or below the rate of inflation. Modifications were made to
the Niagara Mohawk Electric Revenue Adjustment Mechanism (NERAM)
and Measured Equity Return Incentive Term (MERIT) provisions,
which determine how these amounts are to be distributed to
various customer classes and also provide for the Company to
absorb 20% of margin variances (within certain limits)
originating from SC-10 rate discounts (as described below) and
certain other discount programs for industrial customers as well
as 20% of the gross margin variance from NERAM targets for
industrial customers. The Company estimated its total exposure
at March 31, 1994, on such variances for 1994 to be approximately
$13 million, depending on the amount of discounts given. The
supplement also allows the Company to begin recovery over three
years of approximately $15 million of unregulated generator
buyout costs, subject to final PSC determination with respect to
the reasonableness of such costs.
The Company is experiencing a loss of industrial load through
bypass across its system. Several substantial industrial
customers, constituting approximately 85 MW of demand, have
chosen to purchase generation from other sources, either from
newly constructed facilities or under circumstances where they
directly use the power they had been generating and selling to
the Company under power purchase contracts mandated by the Public
16
Utility Regulatory Policies Act of 1978 (PURPA), New York laws
and PSC programs. As a first step in addressing the threat of a
loss of industrial load, the PSC approved a new rate (referred to
as SC-10) under which the Company is allowed to negotiate
individual contracts with some of its largest industrial and
commercial customers to provide them with electricity at lower
prices. Under the new rate, customers must demonstrate that
leaving the Company's system is an economically viable
alternative. At April 30, 1994, the Company estimated that as
many as 75 of its 235 largest customers may be inclined to bypass
the utility's system by making electricity on their own unless
they receive price discounts. Granting discounts would cost an
estimated $20 million per year, while losing those 75 customers
would reduce net revenues by an estimated $80 million per year.
As of April 30, 1994, the Company has offered annual SC-10
discounts to customers totaling $9.7 million, of which $5.3
million have been accepted. The Company estimates that by the
end of 1994 there may be as many as 50 customers subscribing to
the rate, with a lost margin projection in 1994 of $15 million
($3 million shareholder exposure).
Under the terms of its 1994 Rate Agreement, the Company filed a
"competitiveness" study with the PSC on April 7, 1994, entitled
"The Impacts of Emerging Competition in the Electric Utility
Industry." The assessment of competition contained in the report
describes the initial results of the Company's CIRCA 2000
(Comprehensive Industry Restructuring and Competitive Assessment
for the 2000s) studies. Started in 1993, the studies were
undertaken to assess the pace and direction of the growth of
competition in the electric utility industry, as well as the
strengths and weaknesses of the Company in relation to this
assessment.
Although there is considerable debate about what changes should
occur in the electric industry and even more uncertainty about
what will actually happen, the study explores the Company's best
estimate of how impacts would vary depending on the extent of
changes in the industry and the pace at which those changes are
allowed to unfold.
The report presents a brief review of federal energy policy and
the current debate over industry restructuring as background
information. A discussion of the competitive forces that Niagara
Mohawk faces is followed by an assessment of the competitiveness
of the Company's electricity supply costs and an explanation of
the potential financial effects of increased competition.
The Company sells electricity generated from diverse supply
sources, to reduce sensitivity to changes in the economics of any
single fuel source. However, the average cost of these diverse
sources may be greater than that of a single fuel source. While
the Company's average generation costs are competitive with costs
17
of new suppliers of electricity, the current excess supply of
capacity in the Northeast and Canada has significantly depressed
wholesale prices, which may be indicative of retail prices in the
near term if competition quickly expanded. Under these
circumstances, by-pass is a growing threat, although no
regulatory structure for bypass currently exists in New York
State. There is increasing public debate within several
municipalities in the Company's service territory on the issue of
by-pass. The threat of municipalization is not new, either to
the Company or to other utilities across the country.
Summary financial indicators associated with a base case forecast
and an alternative case which estimates one potential scenario of
additional competition under the existing regulatory framework,
are shown in the report. The report concludes with a description
of transition costs and methods for dealing with them, and
provides a roadmap for moving the monopoly-dominated electric
utility industry to fuller competition.
From a broader industry perspective, the assessment concludes
that selective discounting to avoid uneconomic by-pass is likely
to be effective in the current regulatory and competitive regime.
Full retail competition, if not managed appropriately and
consistently, could create significantly higher prices for core
customers, jeopardize the financial viability of the electric
utility industry and devastate the social programs delivered by
the industry. While aggressive cost management must be part of
any response to competition, it alone cannot address the
financial consequences that may arise from a sudden and dramatic
policy change. Regulators, legislators, and utilities must
collaborate to create a fair and equitable transition to
increased competition that addresses the obligation to serve,
incumbent burdens, transition costs, and exit fees. See Item 5.
Other Events, 3. California Open Competition Plan.
1995 Five-Year Rate Plan Filing
On February 4, 1994, the Company made a combined electric and gas
rate filing for rates to be effective January 1, 1995 seeking a
$133.7 million (4.3%) increase in electric revenues and a $24.8
million (4.1%) increase in gas revenues. The electric filing
includes a proposal to institute a methodology to establish rates
beginning in 1996 and running through 1999. The proposal would
provide for rate indexing to a quarterly forecast of the consumer
price index as adjusted for a productivity factor. The
methodology sets a price cap, but the Company may elect not to
raise its rates up to the cap. Such a decision would be based on
the Company's assessment of the market. NERAM and certain
expense deferrals would be eliminated, while the fuel adjustment
clause would be modified to cap the Company's exposure to fuel
and purchased power cost variances from forecast at $20 million
annually. However, certain items which are not within the
18
Company's control would be outside of the indexing; such items
would include legislative, accounting, regulatory and tax law
changes as well as environmental and nuclear decommissioning
costs. These items and the existing balances of certain other
deferral items, such as MERIT and demand-side management (DSM),
would be recovered or returned using a temporary rate surcharge.
The proposal would also establish a minimum return on equity
which, if not achieved, would permit the Company to refile for
new base rates subject to indexing or to seek some other form of
rate relief. Conversely, in the event earnings exceed an
established maximum allowed return on equity, such excess
earnings would be used to accelerate recovery of regulatory or
other assets. The proposal would provide the Company with
greater flexibility to adjust prices within customer classes to
meet competitive pressures from alternative electric suppliers
while increasing the risk that the Company will earn less than
its allowed rate of return. Gas rate adjustments beyond 1995
would follow traditional regulatory methodology.
The Company tentatively settled a motion filed by the PSC Staff
to reject the filing as deficient in support by agreeing to
extend the date by which the PSC must rule on the Company's rate
request by twelve weeks. The Company will absorb one-half of the
costs (the lost margin) arising because of the extension. The
remainder of the costs will be recovered through a noncash credit
to income, and is dependent upon the amount of rate relief
ultimately granted by the PSC for 1995. Temporary gas rates will
be instituted for the full twelve weeks. This settlement of the
PSC Staff's motion must ultimately be approved by the PSC. The
Administrative Law Judge in the case rejected a Consumer
Protection Board (CPB) motion to dismiss the portion of the case
related to years two through five as being beyond the authority
of the PSC.
Common Stock Dividend
On April 14, 1994, the Board of Directors authorized an increase
in the quarterly common stock dividend from $.25 per share to
$.28 per share, which will be paid on May 31, 1994 to
shareholders of record on May 6, 1994. The Board of Directors
had previously authorized a quarterly common stock dividend of
$.25 per share on January 27, 1994 which was paid February 28,
1994.
Unregulated Generators
In recent years, a leading factor in the increases in customer
bills and the deterioration of the Company's competitive position
has been the requirement to purchase power from unregulated
generators at prices in excess of the Company's internal cost of
production and in volumes greater than the Company's needs.
19
While the Company favors the availability of unregulated
generators in satisfying its generating needs, the Company also
believes it is paying a premium to unregulated generators for
energy it does not currently need. The Company estimates that it
paid a premium of $206 million in 1993 and expects to overpay by
$352 million in 1994 and $421 million in 1995. The Company has
initiated a series of actions to address this situation, but
expects that in large part the higher costs will continue.
In order to control the growth of excess supply, the Company has
taken numerous actions to realign its supply with demand. These
actions include plant mothballing and retirements as well as the
implementation of an aggressive wholesale marketing effort. Such
actions have been successful in bringing installed capacity
reserve margins down to more acceptable levels.
On August 18, 1992, the Company filed a petition with the PSC
which calls for the implementation of "curtailment procedures."
Under existing FERC and PSC policy, this petition would allow the
Company to limit its purchases from unregulated generators when
demand is low.
While the Administrative Law Judge has submitted recommendations
to the PSC, the Company cannot predict the outcome of this case.
Also, the Company has commenced settlement discussions with
certain unregulated generators regarding curtailments. On April
5, 1994, the Company requested the PSC to expedite the
consideration of its petition.
On October 23, 1992, the Company also petitioned the PSC to order
unregulated generators to post letters of credit or other firm
security to protect ratepayers' interests in advance payments
made in prior years to these generators. The PSC dismissed the
original petition without prejudice, which the Company believes
would permit the Company to reinitiate its request at a later
date. The Company is conducting discussions with unregulated
generators representing over 1,600 MW of capacity, addressing the
issues contained in its petitions.
On February 4, 1994, the Company notified the owners of nine
projects with contracts that provide for front-end loaded
payments of the Company's demand for adequate assurance that the
owners will perform all of their future repayment obligations,
including the obligation to deliver electricity in the future at
prices below the Company's avoided cost and the repayment of any
advance payment which remains outstanding at the end of the
contract. See Part II. Item 1. Legal Proceedings, for responses
to the Company's notifications.
Financing Plans and Financial Positions
External financing of approximately $750 million is expected for
20
1994, of which approximately $545 million will be used for
scheduled and optional refundings. This external financing is
projected to consist of $425 million in long-term debt,
(including $210 million in long-term debt described below) $200
million from sales of common stock and $200 million of preferred
stock, offset by a $75 million decrease in short-term debt.
During March 1994, $210 million of 6-7/8% series First Mortgage
Bonds due March 1, 2001 were issued. Proceeds from the issuance
were used in connection with the retirement of $200 million of
outstanding higher-rate First Mortgage Bonds. The Company is
also investigating other options for continuing to reduce its
interest requirements. Through the refinancings completed to
date, the Company has been able to reduce its embedded cost of
debt on First Mortgage Bonds from 9.25% at December 31, 1991 to
8.01% at April 30, 1994.
The Company believes that traditionally available sources of
financing should be sufficient to satisfy the Company's external
financing needs during the period 1994 through 1998. At May 1,
1994, the Company could issue $2,163 million aggregate principal
amount of First Mortgage Bonds under the earnings test set forth
in the Company's Mortgage Trust Indenture assuming a 8% interest
rate. This includes approximately $1,121 million on the basis of
retired bonds and $1,042 million supported by additional property
currently certified and available. A total $200 million of
Preference Stock is currently available for sale. The Company
also has authorized unissued Preferred Stock totaling $390
million. The Company continues to explore and utilize, as
appropriate, other methods of raising funds. The Company's
Charter restricts the amount of unsecured indebtedness which may
be incurred by the Company to 10% of consolidated capitalization
plus $50 million. The Company has not reached this restrictive
limit.
Cash flows to meet the Company's requirements for the first three
months of 1994 and 1993 are reported in the Consolidated
Statements of Cash Flows on Page 6.
Ordinarily, construction-related short-term borrowings are
refunded with long-term securities on a periodic basis. This
approach generally results in the Company showing a working
capital deficit. Working capital deficits may also be
temporarily created as a result of the seasonal nature of the
Company's operations as well as timing differences between the
collection of customer receivables and the payment of fuel and
purchased power costs. However, the Company has sufficient
borrowing capacity to fund such deficits as necessary.
Material Changes in Results of Operations
Three Months Ended March 31, 1994 versus Three Months Ended
21
March 31, 1993
The following discussion presents the material changes in results
of operations for the first quarter of 1994 in comparison to the
same period in 1993. The Company's quarterly results of
operations reflect the seasonal nature of its business, with peak
electric loads in summer and winter periods. Gas sales peak
principally in the winter. The earnings for the three month
period should not be taken as an indication of earnings for all
or any part of the balance of the year.
Earnings for the first quarter were $131.4 million or $.92 per
share, as compared with $118.7 million or $.86 per share in 1993.
As shown in the table below, electric revenues increased $57.1
million or 6.5% from 1993. This increase resulted primarily from
the second stage rate increase granted in September 1993 and also
reflected higher fuel adjustment clause revenues to cover
increasing payments to unregulated generators. Consistent with
the terms of the NERAM, the Company deferred the electric gross
margin shortfall from the rate case forecast of $10.7 million and
$20.7 million in the first quarters of 1994 and 1993,
respectively, for future recovery. The decrease in DSM revenues
relates to a change in recovery of certain costs in base rates
versus inclusion in a separate DSM surcharge.
Increase in base rates $ 24.1 million
Sales to ultimate consumers 23.4
Sales to other electric systems 21.6
Fuel adjustment clause revenues 17.7
Miscellaneous operating revenues (4.5)
NERAM revenues (9.9)
DSM revenues (15.3)
------
$ 57.1 million
======
Electric kilowatt-hour sales to ultimate consumers were
approximately 9.4 billion in the first quarter of 1994, a 3.1%
increase from 1993 primarily as a result of colder weather.
After adjusting for the effects of weather, sales to ultimate
consumers increased only slightly (.3%). Sales for resale
increased 913 million kilowatt-hours (99.1%) resulting in a net
increase in total electric kilowatt-hour sales of 1,196 million
(11.9%). Sales for resale increased due to the availability of
Company generation for sale as a result of an increase in
required purchases from unregulated generators and the record
cold in the region, which is not likely to be repeated. As
established in rates, the Company retains 40% of the gross margin
variance from the forecast of sales for resale, with the
22
remainder passed back to ratepayers. Industrial-Special sales
are New York State Power Authority allocations of low-cost power
to specified customers.
Revenues (Thousands) Sales (GwHrs)
% %
1994 1993 Change 1994 1993 Change
Residential $ 372,769 $ 338,944 10.0 3,268 3,153 3.6
Commercial 339,620 318,116 6.8 3,301 3,187 3.6
Industrial 138,420 136,525 1.4 1,782 1,741 2.4
Industrial - Special 12,317 10,290 19.7 999 984 1.5
Municipal 12,853 13,059 (1.6) 60 62 (3.2)
Total to Ultimate Consumers 875,979 816,934 7.2 9,410 9,127 3.1
Other Electric Systems 50,981 29,359 73.6 1,834 921 99.1
Miscellaneous 6,757 30,332 (77.7) - - -
Total $ 933,717 $ 876,625 6.5 11,244 10,048 11.9
========== ========== ==== ====== ====== ====
Electric fuel and purchased power costs increased $67.0 million
or 24.8%. This increase is the result of a $82.9 million
increase in purchased power costs (principally payments to
unregulated generators), offset by a $1.8 million net decrease in
costs deferred and recovered through the operation of the fuel
adjustment clause and by a decrease in fuel costs of $14.1
million. The decrease in fuel costs reflects a combination of
greater unregulated generator purchase requirements and greater
nuclear availability, which reduced the need to operate the
fossil plants during the first three months of 1994. See detail
in table below.
23
Three Months Ended March 31,
1994 Fuel &
% Change from Purchased Power
1994 1993 prior year GwHr. Cost
FUEL FOR ELECTRIC GENERATION:
(IN MILLIONS OF DOLLARS)
GwHrs. Cost GwHrs. Cost GwHrs. Cost Cents/KwHr
------ ------ ------ ------ ------ ---- ----------
Coal 1,800 $ 30.4 2,139 $ 32.6 (15.8) (6.7) 1.69
cents
Oil 743 23.4 1,087 34.6 (31.6) (32.4) 3.15
Natural Gas 3 .5 193 3.5 (98.4) (85.7) 16.67
Nuclear 2,123 11.7 1,584 9.4 34.0 24.5 .55
Hydro 869 - 969 - (10.3) - -
------ ------ ----- ------ ------ ----- -----
5,538 66.0 5,972 80.1 (7.3) (17.6) 1.19
------ ------ ----- ------ ------ ----- -----
ELECTRICITY PURCHASED:
Unregulated Generators 3,717 235.4 2,658 166.9 39.8 41.0 6.33
Other 2,891 43.1 2,231 28.7 29.6 50.2 1.49
------ ------ ----- ------ ----- ----- -----
6,608 278.5 4,889 195.6 35.2 42.4 4.21
------ ------ ----- ------ ----- ----- -----
12,146 344.5 10,861 275.7 11.8 25.0 2.84
------ ------ ------ ------ ----- ----- -----
Fuel adjustment clause - (7.0) - (5.2) - (34.6)
Losses/Company use 902 - 813 - 11.0 - -
------ ------ ----- ------ ----- ------ -----
11,244 $337.5 10,048 $270.5 11.9 24.8 3.00
====== ====== ====== ====== ===== ====== cents
=====
Gas revenues increased $42.4 million or 16.4% in 1994 from the
24
comparable period in 1993 as set forth in the table below:
Sales to ultimate consumers $36.8 million
Purchased gas adjustment clause revenues 10.7
Increase in base rates 3.3
Miscellaneous operating revenues 2.9
Transportation of customer-owned gas (1.4)
Spot market sales (9.9)
--------
$42.4 million
=======
Due in part to cooler weather in the first three months of 1994,
gas sales to ultimate consumers were 44.8 million dekatherms, a
13.7% increase from the first quarter of 1993. After adjusting
for the effects of weather, sales to ultimate consumers increased
6.8%, attributable to a continuing focus on commercial marketing
programs. Transportation of customer-owned gas increased 3.1
million dekatherms (16.3%). This increase was caused by dual
fuel customers who switched to alternative fuels based on market
price and availability. These increases were offset by a
decrease in spot market sales (sales for resale) which are
generally from the higher priced gas available to the Company and
therefore yield margins that are substantially lower than
traditional sales to ultimate consumers. In 1994, the Company
retains only 15% of the profit margin on spot market sales,
compared to 100% in 1993. The other 85% is passed back to
ratepayers. Also due to the colder weather, less spot market gas
was available to purchase and resell economically.
Revenues (Thousands) Sales (Thousands of Dekatherms)
% %
1994 1993 Change 1994 1993 Change
Residential $199,351 $164,781 21.0 30,277 26,840 12.8
Commercial 82,369 66,912 23.1 13,287 11,601 14.5
Industrial 6,744 5,090 32.5 1,273 990 28.6
Total to Ultimate Consumers 288,464 236,783 21.8 44,837 39,431 13.7
Other Gas Systems 607 485 25.2 129 112 15.2
Transportation of Customer-
Owned Gas 10,431 11,860 (12.0) 22,299 19,180 16.3
Spot Market Sales 3,989 13,755 (71.0) 1,349 6,295 (78.6)
Miscellaneous (1,650) (3,469) (52.4) - - -
Total to System Core Customers $301,841 $259,414 16.4 68,614 65,018 5.5
25
As a result of a 5.4 million increase in dekatherms purchased
and withdrawn from storage for ultimate consumer sales and a 4.9
million decrease in dekatherms purchased for spot market sales,
coupled with a $25.9 million increase in the cost of dekatherms
purchased, and a $3.7 million increase in purchased gas costs and
certain other items recognized and recovered through the
purchased gas adjustment clause, the total cost of gas included
in expense increased 13.0% in 1994. The Company's net cost per
dekatherm sold, as charged to expense and excluding spot market
purchases, increased from $3.49 in 1993 to $3.72 in 1994.
26
Three Months Ended March 31,
(In Millions)
Increase %
1994 1993 (Decrease) Change
Other operation expense $172,684 $194,827 $ (22,143) (11.4)
Maintenance 47,493 50,330 (2,837) (5.6)
Depreciation and amortization 75,406 67,662 7,744 11.4
Federal and foreign income taxes, net 85,964 77,806 8,158 10.5
Other taxes 135,754 128,553 7,201 5.6
Other items (net) 2,966 4,472 (1,506) (33.7)
Interest charges 72,569 73,211 (642) (0.9)
Other operation expense decreased primarily due to decreases in
nuclear costs from the Unit 1 refueling outage in the first
quarter of 1993 and the decrease in amortization of other
regulatory deferrals, which expired in 1993.
Maintenance expense decreased principally due to lower nuclear
costs because of the Unit 1 refueling outage in the first quarter
of 1993.
Depreciation and amortization increased due to the closing of
major orders to plant in service during 1993.
Federal income taxes (net) increased as a result of an increase
in pre-tax income. The Revenue Reconciliation Act of 1993 (Act)
was signed into law on August 10, 1993. One of the provisions of
the Act raised the federal corporate statutory tax rate from 34%
to 35%, retroactive to January 1, 1993. A provision of the 1993
Settlement Agreement provided for the deferral of the effects of
tax law changes which is included as a reduction to Other
operation expense.
Other taxes increased primarily because of higher real estate and
payroll taxes.
27
Interest charges decreased from 1993, primarily due to the
refunding of debt to obtain lower interest rates.
28
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
PART II
Item 1. Legal Proceedings
In November 1993, the New York Court of Appeals unanimously
affirmed a Supreme Court, Appellate division (Third
Department) decision invalidating, in part, New York State
Department of Environmental Conservation (DEC) Declaratory
Ruling. In this Declaratory Ruling, the DEC claimed that
it could perform a full environmental review and condition
the operation of hydroelectric projects under the
provisions of Clean Water Act Section 401 Water Quality
Certifications (401 Certifications). The Third Department
held that the Federal Power Act precluded the DEC from
performing a broad environmental review of federally
licensed hydro projects under the 401 Certification
process.
The decision limits the DEC's ability to regulate federally
licensed hydroelectric projects under the guise of 401
Certifications. In so limiting the DEC's regulatory role,
the DEC is unable to impose specific operating requirements
which impairs the project's ability to generate low cost
electricity and requires significant capital additions to
the projects. The Court found that the DEC's attempt to
enlarge its scope of review under the Clean Water Act to
include certain aspects of N.Y. Environmental Conservation
Law (Article 15) was "unfounded."
In April 1994, New York State asked the U.S. Supreme Court
to hear a case against the Company which imposes tougher
environmental regulations on hydropower plants than called
for under federal law. An adverse ruling would mean that
New York State could specify the minimum flows in a river
affected by a hydropower plant. The State also could
impose regulations regarding how hydropower plants affect
fish in those rivers. Proposed New York State regulations
would affect 35 of the Company's hydropower generating
plants soon to be up for relicensing. These regulations
would also limit the generating capacity of the hydro
plants. The ultimate outcome of the litigation cannot
presently be determined.
On February 4, 1994, the Company notified the owners of
nine projects with contracts that provide for front-end
loaded payments of the Company's demand for adequate
assurance that the owners will perform all of their future
repayment obligations, including the obligation to deliver
29
electricity in the future at prices below the Company's
avoided cost and the repayment of any advance payment which
remains outstanding at the end of the contract. The
projects at issue total 426 MW. The Company's demand is
based on its assessment of the amount of advance payment to
be accumulated under the terms of the contracts, future
avoided costs and future operating costs of the projects.
As of March 31, 1994, the Company has received the
following responses to these notifications:
On March 4, 1994, Encogen Four Partners, L.P. filed a
complaint in the United States District Court for the
Southern District of New York alleging breach of contract
and prima facie tort by the Company. Encogen seeks
compensatory damages of approximately $1 million and
unspecified punitive damages. In addition, Encogen seeks a
declaratory judgment that the Company is not entitled to
assurances of future performance from Encogen;
On March 4, 1994, Sterling Power Partners, L.P., Seneca
Power Partners, L.P., Power City Partners, L.P. and AG-
Energy, L.P. filed a complaint in the Supreme Court of the
State of New York, County of New York seeking a declaratory
judgment that: (a) the Company does not have any legal
right to demand assurances of plaintiffs' future
performance; (b) even if such a right existed, the Company
lacks reasonable insecurity as to plaintiffs' future
performance; (c) the specific forms of assurances sought by
the Company are unreasonable; and (d) if the Company is
entitled to any form of assurances, plaintiffs have provided
adequate assurances; and
On March 7, 1994, NorCon Power Partners, L.P. filed a
complaint in the United States District Court for the
Southern District of New York seeking to enjoin the Company
from terminating a power purchase agreement between the
parties and seeking a declaratory judgment that the Company
has no right to demand additional security or other
assurances of NorCon's future performance under the power
purchase agreement. NorCon sought a temporary restraining
order against the Company to prevent the Company from taking
any action on its February 4 letter. On March 14, 1994, the
Court entered the interim relief sought by NorCon.
The Company cannot predict the outcome of these actions or
the response otherwise to its February 4, 1994
notifications, but will continue to press for adequate
assurance that the owners of these projects will honor their
repayment obligations.
Item 4. Submission of Matters to a Vote of Security Holders.
30
At the Company's annual meeting of shareholders on May 3,
1994, (1) the election of Directors to Class III: L.
Burkhardt, III, D. Costle, D. Riefler, S. Schwartz and J.
Wick was approved by a vote of 126,367,321 for and 1,643,255
withheld authority;
(2) an Amendment to the Corporation's Certificate of
Incorporation to increase the number of authorized shares of
Common Stock from 150,000,000 to 185,000,000 shares was
approved by a vote of 120,371,790 for, 8,382,666 against and
1,713,834 abstained; and,
(3) a shareholder proposal relating to a Company report on
carbon dioxide and emissions and related regulations was not
approved by a vote of 81,345,461 against and 19,575,238 for.
Item 5. Other Events
1. Roseton Steam Electric Generating Station
Reference is made to Part I, Item 2 (Properties) of the
Company's Annual Report, on Form 10-K, for the fiscal year
ended December 31, 1993 (10-K Report), for a discussion of
the agreement among Central Hudson Gas and Electric
Corporation (CHG&E), Consolidated Edison Company of New
York, Inc. (Con Edison), and the Company, the cotenants of
the Roseton Plant (the Co-tenants") regarding the 1987
agreement between CHG&E and the Company with reference to
the purchase, over a ten-year period commencing in December,
1994, of the Company's interest in the Roseton Plant (the
Roseton Amendment Agreement), and the related joint petition
pending before the PSC regarding regulatory approval of the
Roseton Amendment Agreement.
By Agreement made as of March 30, 1994, the Company and
CHG&E terminated and cancelled the Roseton Amendment
Agreement. A motion to close the proceeding pending before
the PSC to approve the Roseton Amendment Agreement was filed
by the Company and CHG&E on April 12, 1994.
On March 30, 1994, the Company and CHG&E also entered into a
Letter of Understanding which, among other things, provides
for:
(a) changes in plant operations that could signifi-
cantly reduce the cost of operation;
(b) the sale of electricity both in the near term and
the long term; and
(c) various options for each company to purchase or
maintain ownership of the Roseton Plant.
31
2. Nuclear Fuel Storage Initiative
In April 1994, the Company joined a spent nuclear fuel
storage initiative with the Mescalero Apache Tribal
Council, 32 other utilities and two nuclear industry
contractors on Mescalero tribal lands. Each of the
utility companies has been guaranteed an opportunity to
become an equity partner with the Mescalero Apache Tribe
in their efforts to site a private spent nuclear fuel
storage facility on the tribal lands.
The first phase is to determine by June 1, 1994,
detailed costs and schedules for the project. Once the
estimates are complete, partners can decide whether or
not to continue to phase two, in which a business entity
with the Mescalero's as majority partner would be
established.
The next step would be Tribal and the NRC licensing
process. It is estimated that approximately three to
four years will be required to obtain a license to store
used fuel and cost in the range of $8 to $10 million.
During the NRC licensing process, an environmental
impact statement will be developed in conjunction with
extensive public hearings.
The Mescalero Tribe has been involved in studying spent
fuel storage technologies and safety for approximately
three years through the voluntary Monitored Retrievable
Storage (MRS) program authorized by Congress.
3. California Open Competition Plan
On April 20, 1994, the California Public Utilities
Commission (the "CPUC") announced a new electric utility
regulation plan which is intended to create open
competition among power suppliers in the California
electric markets by 2002. The plan, which is to be
implemented by final rules to be adopted in August 1994,
provides that utility customers who currently receive
more than 50 kilovolts at the transmission level may
choose their power supplier after January 1, 1996 and
that the same choice will be provided to all other
classes of customers on a phased-in basis from 1997
through 2002. Although the announced goals of the
CPUC's plan are to lower energy costs, reduce regulatory
oversight and encourage competition, the CPUC has also
stated that the plan will not saddle remaining customers
with the burden of stranded investment costs from their
traditional utilities but will permit those utilities to
recover all of their prudently incurred costs. The
exact mechanisms through which these goals can be
32
accomplished have not been set forth and the CPUC has
indicated that the portion of its plan calling for
unbundling of retail rates and assigning of different
costs to various services involves a "gray area"
relating to whether the CPUC or the Federal Energy
Regulatory Commission has jurisdiction over such
matters.
Because California is recognized as a leader in utility
regulatory matters, and given that this plan to
implement further deregulation and competition is
consistent with predictions from a wide variety of
opinion leaders in the industry, these initiatives could
accelerate the pace of change from single source
provision of electric service to full competition in the
Company's service territory. This in turn would also
accelerate the necessity to determine how and to what
extent cost recovery will be accomplished among the
Company's various classes of customers. However, the
Company is not able to predict at this time what means
would be adopted by regulators, the time period in which
these issues will be addressed or resolved, or the
effects thereof on the Company's financial condition or
results of operations.
4. PSC Petition
On July 28, 1993, the Company petitioned the PSC for
permission to offer competitively priced natural gas to
customers who presently purchase gas from non-utility
sources. The new rate is designed to regain a share of
the industrial and commercial sales volume the Company
lost in the 1980's when large customers were allowed to
buy gas from non-utility sources. The Company will
delay any implementation of this rate until the issues
are further addressed in a comprehensive generic
investigation, currently being conducted by the PSC,
into issues involving the restructuring of gas utility
services to respond to emerging competition.
5. Sithe/Alcan
In April 1994, the PSC ruled that, in the event that
Sithe Independence Power Partners Inc. (Sithe)
ultimately obtains authority to sell electric power at
retail, those retail sales will be subject to a lower
level of regulation than the PSC presently imposes on
the Company. Sithe, which will sell electricity to Con
Ed and the Company on a wholesale basis from its 1,040
megawatt natural gas cogeneration plant, will provide
steam to Alcan Rolled Products (Alcan). Sithe also
proposes to sell a portion of its electricity output on
33
a retail basis to Alcan, currently a customer of the
Company.
The PSC has previously ruled that, under the Public
Service Law, Sithe must obtain a PSC certificate before
it may use its electricity generating facilities to
serve any retail customers. Although Sithe continues to
contend that these retail sales are not subject to
regulation by the PSC, Sithe has filed an application
for authority to provide such services subject to PSC
regulation.
The next step is another pre-hearing conference at which
a procedural schedule for discovery and the submission
of testimony and legal briefs will be developed.
34
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
Exhibit 3 - Articles of Incorporation as amended to
increase the number of authorized shares of Common Stock
from 150,000,000 to 185,000,000 shares.
Exhibit 11 - Computation of the Average Number of Shares
of Common Stock Outstanding for the Three Months Ended
March 31, 1994 and 1993.
Exhibit 12 - Statement Showing Computations of Ratio of
Earnings to Fixed Charges, Ratio of Earnings to Fixed
Charges without AFC and Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends for the Twelve Months Ended
March 31, 1994.
Exhibit 15 - Accountants' Acknowledgement Letter.
(b) Report on Form 8-K:
Form 8-K Reporting Date - February 18, 1994.
Items Reported - Item 5. Other Events.
Registrant filed certain information concerning financial
information substantially constituting a portion of its
1993 Annual Report to Stockholders including financial
statements for the fiscal year ended December 31, 1993.
Form 8-K Reporting Date - February 24, 1994.
Items Reported - Item 5. Other Events
Registrant filed information concerning Standard & Poors
lowering of the credit rating of the Company's securities.
35
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
NIAGARA MOHAWK POWER CORPORATION
(Registrant)
Date: May 12, 1994 By /s/ Steven W. Tasker
Steven W. Tasker
Vice President-Controller and
Principal Accounting Officer,
in his respective capacities
as such
36
1
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
__________
Pursuant to Sections 26-a and 36 of the Stock Corporation Law
__________
January 5, 1950
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed Jan 5, 1950
Tax $110,124.00
Filing Fee $25
2
THOMAS J. CURRAN
Secretary of State
By A. D. BORDEN
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
__________
Pursuant to Section 26-a and 36 of the Stock Corporation Law
__________
NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes referred to
as "the Corporation") by its President thereunto duly authorized
DOES HEREBY CERTIFY:
I. The name of the Corporation is "Niagara Mohawk Power
Corporation".
The name under which the Corporation was originally incorporated
was "Niagara Hudson Public Service Corporation".
II. The Certificate of Consolidation forming the Corporation
(under the name of "Niagara Hudson Public Service Corporation") was
filed in 3
the Department of State of the State of New York on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State of the State of New York on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State of the
State of New York on January 5, 1950. Said Certificate of
Consolidation is hereinafter sometimes referred to as the "1950
Certificate of Consolidation".
III. The certificate of incorporation of the Corporation is
hereby amended to effect the following changes authorized in
subdivision two of Section 35 of the Stock Corporation Law:
(1) The change and reclassification of 9,580,989 previously
authorized and issued shares of Common Stock without par value into
1,928,627 authorized and issued shares of Class A Stock without par
value (convertible into shares of Common Stock) and 7,473,172
authorized and issued shares of Common Stock without par value, and
(2) The change of 1,419,011 previously authorized and unissued
shares of Common Stock without par value into a different number,
namely 3,621,490, of authorized and unissued shares of Common Stock
without par value, and
(3) The increase of the number of authorized shares, and
(4) The change of the preferences, privileges and voting powers of
the Preferred Stock and the restrictions and qualifications
thereof, and
(5) The change of the Corporation's statements respecting capital,
including the amendment of the provisions as to the consideration
for 4
which shares without par value may be issued, and
(6) The adoption of a provision with respect to the dollar amount
of minimum capital of the Corporation, and
(7) The insertion of provisions with respect to the issuance of
scrip certificates for fractional interests in shares of stock of
the Corporation.
IV. Parts A, B and C of Article IV of the 1950 Certificate of
Consolidation, setting forth the number of authorized shares, the
statements respecting capital and the number of shares of each
class, are hereby amended to read as follows:
"IV. A. The total number of shares which the Corporation may have
is 14,223,289, of which 1,200,000 are to have a par value of $100
each, and 13,023,289 are to be without par value.
"B. The capital of the Corporation shall be at least equal to the
sum of the aggregate par value of all issued shares having par
value, plus the aggregate amount of consideration received by the
Corporation for the issuance of shares without par value, plus such
amounts as, from time to time, by resolution of the Board of
Directors, may be transferred thereto.
"Subject to the laws creating and defining the duties of the Public
Service Commission, authorized but unissued shares of the
Corporation without par value may be issued from time to time for
such consideration as may be fixed by the Board of Directors of the
Corporation.
"The capital of the Corporation shall be not less than
$174,809,890.
"C. The shares of the Corporation are to be classified as
follows:
1,200,000 shares are to be Preferred Stock with a par value of
$100 each; 1,928,627 shares are to be Class A Stock without par
5
value, and 11,094,662 shares are to be Common Stock without par
value".
V. The provisions of the certificate of incorporation of the
Corporation which state the designations, preferences, privileges
and voting powers of the Preferred Stock, and the restrictions and
qualifications thereof (which provisions are set forth in
paragraphs (1) to (5) inclusive of Part D of Article IV of the 1950
Certificate of Consolidation), shall remain unchanged by this
Certificate of Amendment and shall continue to be as therein set
forth, except only that subdivisions (A), (B) and (F) of said
paragraph (5) are hereby amended to read respectively as follows:
"(A) The holders of the Preferred Stock of each series shall
be entitled to receive, but only when, as and if declared by the
Board of Directors, dividends at the rate fixed for such series
and no more. Such dividends shall be payable on the last day of
March, June, September and December in each year and shall be
cumulative from such date as may be fixed for the series. All
dividends payable on the Preferred Stock shall be fully paid, or
declared and set apart for payment, before any dividends on the
Class A Stock or Common Stock shall be paid or set apart for
payment so that if, for all dividend periods terminating on the
same or an earlier date, dividends on all outstanding shares of
the Preferred Stock at the rates fixed for the respective series
shall not have been paid or set apart for payment, the deficiency
shall be fully paid or set apart for payment before any dividends
shall be paid or set apart for payment on the Class A Stock or
Common Stock. Dividends in full shall not be paid or set apart for
payment on the Preferred Stock of any one series for any dividend
period unless dividends in full have been or are contemporaneously
paid or set apart for payment on the Preferred Stock of all series
for all dividend periods terminating on the same or an earlier
date. When the stated dividends are not paid in full on all series
of the Preferred Stock, the shares of all series shall share
ratably in the payment of dividends, including accumulations, if
any, in accordance with the sums which would be payable on said
shares if all dividends were paid in full. A 6
6
'dividend period' is the period between any two consecutive
dividend payment dates, excluding the first of such dates, as fixed
for the series to which a share or shares shall belong. Accruals
of dividends shall not bear interest.
"(B) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
Preferred Stock of each and every series then outstanding shall be
entitled to receive out of the net assets of the Corporation,
whether capital or surplus, the sums per share fixed for the shares
of the respective series and payable upon such dissolution,
liquidation or winding up, plus, in the case of each share, an
amount equal to the dividends accrued and unpaid thereon, whether
or not earned or declared, before any distribution of the assets of
the Corporation shall be made to the holders of the Class A Stock
or Common Stock, as such.
"If the assets distributable on such dissolution, liquidation or
winding up shall be insufficient to permit the payment to the
holders of the Preferred Stock of the full amounts to which they
respectively are entitled as aforesaid, then said assets shall be
distributed ratably among the holders of the respective series of
the Preferred Stock in proportion to the sums which would be
payable on such dissolution, liquidation or winding up if all such
sums were paid in full in preference and priority over the shares
of any of the Class A Stock or Common Stock.
"After payment to the holders of the Preferred Stock of the full
amounts to which they respectively are entitled as aforesaid, the
holders of the Preferred Stock, as such, shall have no right or
claim to any of the remaining assets of the Corporation.
"The sale, conveyance, exchange or transfer of all or substantially
all of the property of the Corporation, or the merger or
consolidation into or with any other corporation, shall not be
deemed a dissolution, liquidation or winding up for the purposes of
this subdivision (B)".
7
"(F) So long as any shares of the Preferred Stock of any
series are outstanding, the Corporation shall not, without the
consent (given in writing or by vote at a meeting called for that
purpose in the manner prescribed by the By-Laws of the Corporation)
of the holders of record of at least two-thirds of the total number
of shares of the Preferred Stock of all series then outstanding:
"(1) Create or authorize any kind of stock ranking prior to
the Preferred Stock with respect to the payment of dividends or
upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, or create or
authorize any obligation or security convertible into shares of any
such kind of stock;
"(2) Amend, alter, change or repeal any of the express terms
of the Preferred Stock so as to affect the holders thereof
adversely; "(3) Permit any subsidiary to issue any shares of
preferred stock unless such shares are issued to the Corporation;
"(4) Sell any shares of preferred stock of any subsidiary
unless at the same time the Corporation shall sell all shares of
every class of stock of such subsidiary owned by it;
"(5) Make any payment or distribution out of capital or
capital surplus (other than dividends payable in stock ranking
junior to the Preferred Stock) to any holder of any stock ranking
junior to the Preferred Stock;
"(6) Issue any shares of any series of the Preferred Stock
(other than the 790,000 shares of Preferred Stock to be initially
issued) or shares ranking on a parity with them, or reissue any
redeemed or exchanged shares of the Preferred Stock of any series
or shares ranking on a parity with them, unless (a) the shares so
to be issued or reissued are issued or reissued in connection with
the redemption of, or in exchange for, at least an equal number of
shares of the Preferred Stock of another series then outstanding,
or (b) the consolidated income of the Corporation and its
subsidiaries (determined as hereinafter provided) for any twelve
consecutive calendar months within the fifteen calendar months
8
immediately preceding the month within which the issuance or
reissuance of such additional shares is authorized by the Board of
Directors of the Corporation, shall have been in the aggregate not
less than one and one-half times the sum of the interest
requirements (adjusted by provision for amortization of debt
discount and expense or of premium on debt, as the case may be) for
one year on all of the indebtedness of the Corporation and its
subsidiaries outstanding at the date of such proposed issue or
reissue (excluding any indebtedness proposed to be retired in
connection with such issue or reissue) and the full dividend
requirements for one year on all outstanding shares (including
those then proposed to be issued or reissued but excluding any
shares proposed to be retired in connection with such issue or
reissue) of the Preferred Stock and all other stock of the
Corporation, if any, ranking prior to or on a parity with the
Preferred Stock with respect to the payment of dividends or upon
the dissolution, liquidation or winding up of the Corporation,
whether voluntary or involuntary;
"(7) Issue any shares of any series of the Preferred Stock
(other than the 790,000 shares of Preferred Stock to be initially
issued) or shares ranking on a parity with them, or reissue any
redeemed or exchanged shares of the Preferred Stock of any series
or shares ranking on a parity with them, unless (a) the shares so
to be issued or reissued are issued or reissued in connection with
the redemption of, or in exchange for, at least an equal number of
shares of the Preferred Stock of another series then outstanding,
or (b) the stock equity junior to the Preferred Stock as of the end
of the second calendar month immediately preceding such issue or
reissue shall have been not less than an amount equal to the
voluntary liquidation value of the Preferred Stock determined as of
such date; provided that if, for the purpose of meeting such
condition as to the voluntary liquidation value of the Preferred
Stock, it becomes necessary to take into consideration any surplus
of the Corporation, the Corporation shall not thereafter pay any
Common Stock dividend which would reduce the stock equity junior to
the Preferred Stock as of the end of the second calendar month
immediately preceding the date on which such Common Stock dividend
is to be paid to an amount less than the voluntary liquidation
value of the Preferred Stock 9
determined as of such date;
"(8) Pay any Common Stock dividend, if (a) the aggregate
amount of Common Stock dividends paid in the period of one year
ending with and including the date on which such Common Stock
dividend is to be paid, would exceed 75% of the net income
applicable to the Corporation's Common Stock for the period of the
12 calendar months ending with and including the second calendar
month immediately preceding the date on which such Common Stock
dividend is to be paid,and (b) the stock equity junior to the
Preferred Stock, determined as of the end of the second calendar
month immediately preceding the date on which such Common Stock
dividend is to be paid (and after the deduction of the aggregate
amount of Common Stock dividends paid or to be paid from the end of
such immediately preceding second calendar month to and including
the date on which such Common Stock dividend is to be paid), would
be less than 25% of the total capitalization of the Corporation as
of the end of such immediately preceding second calendar month
(after the deduction of the aggregate amount of Common Stock
dividends paid or to be paid from the end of such immediately
preceding second calendar month to and including the date on which
such Common Stock dividend is to be paid); or
"(9) Pay any Common Stock dividend, if (a) the aggregate
amount of Common Stock dividends paid in the period of one year
ending with and including the date on which such Common Stock
dividend is to be paid, would exceed 50% of the net income
applicable to the Corporation's Common Stock for the period of the
12 calendar months ending with and including the second calendar
month immediately preceding the date on which such Common Stock
dividend is to be paid, and (b) the stock equity junior to the
Preferred Stock, determined as of the end of the second calendar
month immediately preceding the date on which such Common Stock
dividend is to be paid (and after the deduction of the aggregate
amount of Common Stock dividends paid or to be paid from the end of
such immediately preceding second calendar month to and including
the date on which such Common Stock dividend is to be paid), would
be less than 20% of the total capitalization of the Corporation as
of the end of such immediately preceding second 10
calendar month (after the deduction of the aggregate amount of
Common Stock dividends paid or to be paid from the end of such
immediately preceding second calendar month to and including the
date on which such Common Stock dividend is to be paid).
"'Consolidated income' for any period, for the purposes of this
subdivision (F), shall be computed by adding to the consolidated
net income of the Corporation and its subsidiaries for said period,
determined in accordance with generally accepted accounting
practices, as adjusted by action of the Board of Directors of the
Corporation as hereinafter provided, the amount deducted for
interest (adjusted as above provided) in determining such net
income. In determining such consolidated net income for any
period, there shall be deducted, in addition to other items of
expense, the amount charged to income for said period on the books
of the Corporation and its subsidiaries for taxes and depreciation
expense. In the determination of consolidated income for the
purposes of this subdivision (F), the Board of Directors of the
Corporation may, in the exercise of the due discretion, make
adjustments by way of increase or decrease in such consolidated
income to give effect to changes therein resulting from any
acquisition of properties or from any redemption, acquisition,
purchase, sale or exchange of securities by the Corporation or its
subsidiaries either prior to the issuance or reissuance of any
shares of Preferred Stock then to be issued or reissued or in
connection therewith.
"The term 'subsidiary', for the purposes of this subdivision
(F), shall mean any corporation more than 50% of the voting stock
(i.e., stock at the time entitling the holders thereof to elect a
majority of the board of directors of such corporation) of which at
the time is owned, directly or indirectly, by the Corporation or
by one or more subsidiaries of the Corporation, or by the
Corporation and by one or more subsidiaries of the Corporation.
"'Stock equity junior to the Preferred Stock' shall, for the
purposes of this subdivision (F), be the aggregate of (a) the par
or stated value of the then outstanding capital stock of the
Corporation junior to the Preferred Stock with respect to the
payment of
11
dividends and upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, (b) the earned
surplus (including reservations thereof and of net income), the
capital surplus and the paid-in surplus of the Corporation and its
subsidiaries, whether or not available for payment of dividends,
and (c) any premium on capital stock of the Corporation as shown on
the Corporation's books of account.
"'Voluntary liquidation value of the Preferred Stock' shall,
for the purposes of this subdivision (F), be the aggregate of the
sums per share (including an amount equal to the dividends accrued
and unpaid thereon) which would be payable upon the voluntary
dissolution, liquidation or winding up of the Corporation to the
holders of the shares of each and every series of the Preferred
Stock then outstanding and of any preferred stock ranking prior to
or on a parity with the Preferred Stock with respect to the payment
of dividends or upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary.
"The term 'Common Stock dividend' shall, for the purposes of
this subdivision (F), mean any dividend on the Corporation's
Common Stock (other than dividends payable in such Common Stock) or
any distribution on, or purchase or acquisition by the Corporation
for value of, any of the Corporation's Common Stock.
"'Net income applicable to the Corporation's Common Stock' for
any period shall, for the purposes of this subdivision (F), be the
amount remaining after deducting from the consolidated net income
of the Corporation and its subsidiaries for said period, determined
in accordance with generally accepted accounting practices, (a) an
amount equal to all dividends accrued during said period on any
class of capital stock of the Corporation having preference as to
the payment of dividends over the Common Stock of the Corporation,
and (b) the amount, if any, by which 15% of the consolidated gross
operating revenues of the Corporation and its subsidiaries (after
the deduction of the aggregate expenditures made by the Corporation
and its subsidiaries for the purchase of electricity and gas and
the lease of electric or gas facilities from others) during said
12
period exceeds the aggregate of (1) the amounts expended by
theCorporation and its subsidiaries during said period for
maintenance and repairs, and (2) the amounts appropriated by the
Corporation and its subsidiaries out of income or earned surplus
and credited to depreciation, retirement or other like reserve
during said period.
"'Total capitalization of the Corporation' shall, for the
purposes of this subdivision (F), be the aggregate of (a) the par
or stated value of the then outstanding capital stock of the
Corporation of all classes, (b) the earned surplus (including
reservations thereof and of net income), the capital surplus and
the paid-in surplus of the Corporation and its subsidiaries,
whether or not available for payment of dividends, (c) any premium
on capital stock of the Corporation as shown on the Corporation's
books of account, and (d) the principal amount of all outstanding
debt of the Corporation and its subsidiaries maturing by its terms
more than 12 months from the date of the determination of such
total capitalization of the Corporation."
VI. Paragraphs (6) and (7) of Part D of Article IV of the 1950
Certificate of Consolidation, relating to the preferences,
privileges and voting powers of the Common Stock, and the
restrictions and qualifications thereof, and to a quorum at
meetings of stockholders, are hereby stricken out, and in lieu
thereof the following provisions are hereby added to the
certificate of incorporation of the Corporation as paragraphs (6),
(7), (8), (9) and (10) of Part D of Article IV of the 1950
Certificate of Consolidation, as amended by this Certificate of
Amendment, which paragraphs (6), (7), (8) and (9) and (10) shall
read respectively as follows:
"CLASS A STOCK AND COMMON STOCK
"Class A Stock
"(6) The following provisions shall apply to all shares of the
Class A Stock:
13
"(A) Subject to the prior rights of the Preferred Stock, the
holders of the Class A Stock shall be entitled to receive, but only
when, as and if declared by the Board of Directors, dividends at
the rate of $1.20 per share per annum and no more. Such dividends
shall be payable on the last day of March, June, September and
December in each year and shall be cumulative from January 1, 1950.
All dividends payable on the Class A Stock shall be fully paid, or
declared and set apart for payment, before any dividends on the
Common Stock shall be paid or set apart for payment so that if, for
all dividend periods terminating on the same or an earlier date,
dividends on all outstanding shares of the Class A Stock at the
rate of $1.20 per share per annum shall not have been paid or set
apart for payment, the deficiency shall be paid or set apart for
payment before any dividends shall be paid or set apart for payment
on any Common Stock of the Corporation. A 'dividend period' is the
period between any two consecutive dividend payment dates,
excluding the first of such dates. Accruals of dividends shall not
bear interest.
"(B) The holder of each share of the Class A shall have the
right, at his option, to convert such share after January 5, 1950,
and on or before January 5, 1953 into one and one-tenth (1 1/10)
shares of the Common Stock, and thereafter on or before January 5,
1956 into one (1) share of the Common Stock, upon surrender of the
certificate for such share of the Class A Stock, duly endorsed in
blank for transfer if required, at the principal office of the
Corporation or at any other office or agency of the Corporation
designated by the Corporation for such purpose. Upon such
surrender, such holder shall cease to be a holder of said share of
Class A Stock, and from and after such surrender, said share shall
forthwith revert to the status of an unissued share and shall not
be reissued, and such holder shall as such have no interest in or
claim against the Corporation with respect to said share, but shall
be entitled only to receive a certificate for the shares of the
Common Stock into which said share of Class A Stock shall be
convertible as aforesaid.
14
"On any such conversion no adjustment shall be made for
dividends on the shares of Class A Stock converted or on the
shares of Common Stock issued upon such conversion.
"If at any time or from time to time the Corporation shall
issue (other than upon conversion of shares of the Class A Stock)
any shares of the Common Stock for a consideration per share less
than the capital represented by each issued share of the Common
Stock immediately after the filing of the Certificate of Amendment
of Certificate of Incorporation of Buffalo Niagara Electric
Corporation filed in the Department of State on January 5, 1950
(which Certificate of Amendment is hereinafter sometimes referred
to as the '1950 Certificate of Amendment'), thereafter any holder
of the Class A Stock, upon surrender thereof for conversion, shall,
in lieu of the number of shares of the Common Stock which but for
such issue and all prior such issues he would be entitled to
receive for each share of the Class A Stock upon conversion
(hereinafter called the 'shares originally subject to conversion'),
be entitled to receive for each share of the Class A Stock an
adjusted number of shares determined by multiplying the number of
shares originally subject to conversion by the quotient obtained by
dividing the capital represented by each issued share of the Common
Stock immediately after the filing of the 1950 Certificate of
Amendment by the capital represented by each issued share of the
Common Stock outstanding after such issue; provided, however, that
no such adjustment shall decrease the number of shares of the
Common Stock into which one share of the Class A Stock may at such
time be converted. For the purposes of such computation, (1) the
capital represented by each issued share of the Common Stock shall
be the quotient obtained by dividing the total capital represented
by the Class A Stock and the Common Stock then outstanding by the
total number of shares of the Class A Stock and the Common Stock
then outstanding, excluding however from such total number of
shares then outstanding the number of shares of the Common Stock
theretofore issued upon the conversion of shares of the Class A
Stock in excess of the number of shares of the Class A Stock so
converted, (2) the total capital represented by the Class A Stock
and the Common Stock then outstanding shall be determined in
15
accordance with the Corporation's statement respecting capital as
in effect immediately after the filing of the 1950 Certificate of
Amendment, without adjustment for any subsequent reductions or
increases of capital, and (3) there shall be deducted from such
total capital the consideration paid by the Corporation for any
shares of the Class A Stock and the Common Stock reacquired by the
Corporation (otherwise than upon conversion of shares of the Class
A Stock).
"For the purposes of this subdivision (B), the following
provisions shall be applicable in determining the consideration for
which shares of the Common Stock shall have been issued: (1) In
case of the issuance of additional shares of the Common Stock for
cash, the consideration received by the Corporation therefor shall
be deemed to be the amount of cash received by the Corporation for
such shares, before deducting therefrom any commissions or other
expenses paid or incurred by the Corporation for any underwriting
of, or otherwise in connection with, the issuance of such shares;
(2) In case of the issuance (otherwise than upon conversion or
exchange of obligations or shares of stock of the Corporation) of
additional shares of the Common Stock for a consideration other
than cash or a consideration a part of which shall be other than
cash, the amount of the consideration other than cash received by
the Corporation for such shares shall be deemed to be the value of
such consideration as determined by the Board of Directors of the
Corporation, and (3)In case of the issuance of additional shares of
the Common Stock upon the conversion or exchange of any obligations
or of any shares of stock of the Corporation, the amount of the
consideration received by the Corporation for such Common Stock
shall be deemed to be the consideration received by the Corporation
for such obligations or shares so converted or exchanged, before
deducting from such consideration so received by the Corporation
any expenses or commissions incurred or paid by the Corporation for
any underwriting of, or otherwise in connection with, the issuance
of such obligations or shares, plus any consideration or adjustment
16
payment received by the Corporation in connection with such
conversion or exchange.
"If at any time or from time to time the Corporation shall, by
reclassification of shares or otherwise, change as a whole the
outstanding shares of its Common Stock into a different number of
shares, thereafter any holder of Class A Stock, upon surrender
thereof for conversion, shall, in lieu of the number of shares of
Common Stock which, but for such change, he would theretofore have
been entitled to receive upon conversion (hereinafter called 'the
shares theretofore subject to conversion'), be entitled to receive
the number of shares into which the shares theretofore subject to
conversion shall have been changed.
"Anything in this subdivision (B) notwithstanding, any
adjustment of the number of shares of the Common Stock issuable
upon conversion of each share of the Class A Stock, resulting from
any computation herein provided, shall be made to the nearest
hundredth of a share, and to no smaller fraction.
"The Corporation shall not be required to issue certificates
representing fractions of a share of the Common Stock resulting
from the conversion of shares of the Class A Stock into shares of
the Common Stock, but a scrip certificate or certificates of the
Corporation shall be issued in respect of such fractional interests
in the Common Stock, in the manner, and subject to the terms,
provisions and conditions, as hereinafter in paragraph (9) of this
Part D provided.
"Prior to January 5, 1956, so long as any shares of the Class A
Stock are outstanding, the Corporation shall not issue, upon the
exercise of the preemptive rights provided to the holders of the
Common Stock by subdivision (B) of paragraph (7) of this Part D,
any additional share of the Common Stock at a price more than 10%
below the market price of shares of the Common Stock at the time of
offering of such share.
17
"The conversion right provided by this subdivision (B) may be
exercised as to any share of the Class A Stock prior to the
effective redemption date of such share, irrespective of the
mailing of a notice of redemption as to such share pursuant to
subdivision (C) of this paragraph (6).
"(C) At the option of the Board of Directors of the
Corporation, the Corporation may redeem the Class A Stock, either
as a whole or in part, at any time or from time to time at a
redemption price of $26.875 per share, plus an amount equal to the
dividends accrued and unpaid thereon to the date fixed for
redemption, whether or not earned or declared; provided, however,
that not less than 30 nor more than 60 days prior to the date fixed
for redemption a notice of the time and place thereof shall be
mailed to the holders of record of the Class A Stock so to be
redeemed on a date fixed by the Board of Directors; and provided,
further, that in every case of redemption of less than all of the
outstanding shares of the Class A Stock, such redemption shall be
made pro rata, or the shares to be redeemed shall be chosen by lot
in such manner as may be prescribed by resolution of the Board of
Directors. At any time after notice of redemption has been mailed
as aforesaid to the holders of stock so to be redeemed, the
Corporation may deposit the aggregate redemption price with a bank
or trust company having its principal office in the State of New
York and according to its last published statement a capital,
surplus and undivided profits aggregating at least $10,000,000,
named in such notice, payable on the date fixed for redemption as
aforesaid and in the amounts aforesaid to the respective orders of
the holders of the shares so to be redeemed, upon endorsement to
the Corporation or otherwise, as may be required, and upon
surrender of the certificates for such shares. Upon the date fixed
for redemption (unless the Corporation fails to make payment of the
redemption price as set forth in such notice), such holders shall
cease to be stockholders with respect to said shares, and from and
after the date fixed for redemption (the Corporation not having
failed to make payment of the redemption price as set forth in such
notice), said shares shall not be deemed to be outstanding and such
holders shall have no interest in or claim against the Corporation
with respect to said shares, but shall be entitled only to receive
said moneys on the 18
date fixed for redemption as aforesaid from said bank or trust
company, or from the Corporation, as the case may be, without
interest thereon, upon endorsement to the Corporation or otherwise,
as may be required, and upon surrender of the certificates for such
shares, as aforesaid. If at the time of the mailing of notice of
redemption as aforesaid to the holders of stock so to be redeemed
the Corporation shall not have deposited the aggregate redemption
price as aforesaid, such notice may state that it is subject to the
deposit of the aggregate redemption price with a bank or trust
company having its principal office in the State of New York and
according to its last published statement a capital, surplus and
undivided profits aggregating at least $10,000,000, named in such
notice, on or before the date fixed for redemption, and any notice
of redemption containing such statement shall be of no effect
unless such aggregate redemption price is so deposited on or before
such date fixed for redemption.
"In case the holder of any such Class A Stock which shall have
been called for redemption shall not, within six years after said
deposit, claim the amount deposited as above stated for the
redemption thereof, such bank or trust company shall upon demand
pay over to the Corporation such unclaimed amount and such bank or
trust company shall thereupon be relieved from all responsibility
to such holder, and such holder shall look only to the Corporation
for the payment thereof. Any interest accrued on any funds so
deposited shall belong to the Corporation.
"(D) Nothing herein contained shall limit any legal right of
the Corporation to purchase or otherwise acquire any shares of the
Class A Stock.
"(E) So long as any shares of the Class A Stock are
outstanding, the Corporation shall not, without the consent (given
in writing or by vote at a meeting called for that purpose in the
manner prescribed by the By-Laws of the Corporation) of the holders
of record of at least two-thirds of the total number of shares of
the Class A Stock then outstanding:
19
(1) Classify or reclassify outstanding shares of the Class A
Stock so as to affect the holders thereof adversely;
(2) Voluntarily dissolve, liquidate or wind up;
(3) Sell, convey, exchange or transfer all or substantially
all of the property of the Corporation.
"The merger or consolidation of the Corporation into or with
any other corporation shall not be deemed a dissolution,
liquidation or winding up or a sale, conveyance, exchange or
transfer for the purposes of this subdivision (E).
"(F) Except as provided in subdivision (B) above, the Class A
Stock of the Corporation shall not entitle any holder thereof as a
matter of right to subscribe for, purchase or receive any part of
the unissued stock of the Corporation or any stock of the
Corporation to be issued by reason of any increase of the
authorized capital stock of the Corporation or any stock of the
Corporation purchased by the Corporation or by its nominee or
nominees, or to subscribe for, purchase or receive any rights to or
options to purchase any such stock or any bonds, certificates of
indebtedness, debentures or other securities convertible into or
carrying options or warrants to purchase stock or other securities
of the Corporation, or to have any other preemptive rights as now
or hereafter defined by the laws of the State of New York.
"If the Corporation shall offer for sale, on or before January
5, 1956, shares or other securities which are subject to the
preemptive rights provided to the holders of the Common Stock by
subdivision (B) of paragraph (7) of this Part D, it shall mail a
notice of such offering to the holders of the Class A Stock then
outstanding, not less than ten (10) days prior to the record time
for the determination of holders of record of the Common Stock
entitled to preemptive rights with respect to such offering. Such
notice shall describe the shares or other securities proposed to be
offered and shall set forth the earliest date at which there may be
determined the holders of record of the Common Stock entitled to
such preemptive
20
rights.
"(G) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
Class A Stock then outstanding shall be entitled to receive out of
the net assets of the Corporation, whether capital or surplus, an
amount equal to the dividends accrued and unpaid thereon, whether
or not earned or declared, before any distribution of the assets of
the Corporation shall be made to the holders of the Common Stock.
"The sale, conveyance, exchange or transfer of all or substantially
all of the property of the Corporation, or the merger or
consolidation into or with any other corporation, shall not be
deemed a dissolution, liquidation or winding up for the purposes of
this subdivision (G).
"Common Stock
"(7) The following provisions shall apply to all shares of the
Common Stock:
"(A) Out of the assets of the Corporation available for
dividends remaining after full dividends on all stock having
priority as to dividends over the Common Stock shall have been paid
or declared and set apart for payment and after making such
provision, if any, as the Board of Directors may deem necessary or
advisable for working capital and reserves or otherwise, then, and
not otherwise, dividends may be paid upon the Common Stock, but
only when and as determined by the Board of Directors.
"(B) The holders of the Common Stock shall have preemptive
rights as the same are defined in Section 39 of the Stock
Corporation Law, except that shares or other securities offered for
sale shall not be subject to such preemptive rights (1) if not so
subject under said Section 39 or (2) if they are the subject of a
public offering or of an offering to or through underwriters or
investment bankers who shall have agreed promptly to make a public
offering of such shares.
21
"Provisions Applicable to the Class A Stock and Common Stock
"(8) The following provisions shall apply to all shares of the
Class A Stock and of the Common Stock:
"(A) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, after there shall
have been paid to or set apart for the holders of all stock having
priority over the Common Stock the full preferential amounts to
which they are respectively entitled, including any cumulative
dividends on the Class A Stock provided by subdivision (A) of
paragraph (6) of this Part D which are accrued and unpaid at the
date of such dissolution, liquidation or winding up, the holders of
the Class A Stock and the holders of the Common Stock shall be
entitled to receive pro rata all of the remaining assets of the
Corporation available for distribution to its stockholders. The
sale, conveyance, exchange or transfer of all or substantially all
of the property of the Corporation, or the merger or consolidation
into or with any other corporation, shall not be deemed a
dissolution, liquidation or winding up for the purposes of this
subdivision (A).
"The Board of Directors, by vote of a majority of the members
thereof, may distribute in kind to the holders of the Class A Stock
and the holders of the Common Stock pro rata such remaining assets
of the Corporation, or may sell, transfer or otherwise dispose of
the remaining assets of the Corporation, or any part thereof, to
any other corporation or to any person, and receive payment
therefor wholly or partly in cash or in stock or in obligations of
such corporation or person, and may sell, transfer or otherwise
dispose of all or any of such consideration received therefor and
distribute the proceeds thereof to the holders of the Class A Stock
and the holders of the Common Stock pro rata.
"(B) The respective shares of the Class A Stock and of the
Common Stock shall entitle the holders thereof to one vote for each
share of such Class A Stock or Common Stock held by them,
respectively, except as in this subdivision (B) otherwise
22
expressly provided.
"At all meetings of stockholders held for the purpose of
electing directors, each holder of shares of the Class A Stock and
each holder of shares of the Common Stock shall be entitled to as
many votes as shall equal the number of votes which (except for
this provision as to cumulative voting) he would be entitled to
cast for the election of directors with respect to his shares of
stock multiplied by the number of directors to be elected by the
holders of shares of the Class A Stock and of the Common Stock, and
he may cast all of such votes for a single director or may
distribute them among the number to be voted for, or any two or
more of them, as he may see fit.
"(C) Except as otherwise expressly provided in the preceding
paragraphs (6) and (7) of this Part D, the Common Stock and the
Class A Stock shall, for all purposes, be deemed to be shares of
one and a single class of stock.
"SCRIP CERTIFICATES
"(9) Whenever a conversion of shares of Class A Stock into
Common Stock, or any other exchange or conversion of shares of
stock of the Corporation of any class or series for or into shares
of another class or series, or any exchange of shares of stock of
the Corporation for shares of stock of another corporation
pursuant to any plan of exchange or reorganization approved and
accepted by the Board of Directors of the Corporation, shall
result in the creation of interests in fractions of shares of stock
of the Corporation of any class or series, the Corporation shall
not be required to issue certificates representing such fractions
of shares of stock, but a scrip certificate or certificates shall
be issued in respect of such fractional interests in shares. Such
scrip certificates will entitle the holders thereof, upon such
terms and under such conditions as may be set by the Board of
Directors of the Corporation, upon the surrender of scrip
certificates aggregating one or more full shares
23
of stock of the respective class or series, to receive, on or
before a date to be fixed by the Board of Directors of the
Corporation, a certificate or certificates representing such full
shares. The scrip certificates will provide that, as soon as
practicable after such date so fixed by the Board of Directors of
the Corporation, any shares of stock represented by outstanding
scrip certificates shall be sold and the proceeds held without
accountability for interest for the account of the holders of scrip
certificates until a date fixed by the Board of Directors and to be
not more than two years later, after which latter date all
unsurrendered scrip certificates of the Corporation shall become
void.
"Scrip certificates shall be non-voting and non-dividend
bearing and shall not entitle the holders thereof to any rights as
stockholders of the Corporation.
"For the purposes of the conversion of shares of the Class A
Stock into shares of the Common Stock as provided in subdivision
(B) of paragraph (6) of this Part D, scrip certificate shall be
issued representing interests in fractions of shares of Common
Stock resulting from such conversion, which shall entitle the
holders thereof, upon the surrender of such scrip certificates in
amounts aggregating one or more full shares of Common Stock on or
before January 5, 1956, to receive a certificate or certificates
representing such full shares of Common Stock. After said date,
any shares of Common Stock represented by such scrip certificates
then outstanding shall be sold, and the proceeds thereof held for
the account of the holders of such outstanding scrip certificates,
without interest, until a date fixed by the Board of Directors and
not more than two years later, when all such unsurrendered scrip
certificates shall become void.
"QUORUM OF STOCKHOLDERS
"(10) At all meetings of the stockholders of the Corporation a
quorum must be present for the transaction of business, and except
24
as otherwise provided under the heading 'General Provisions
Applicable to All Series of Preferred Stock' in respect of meetings
of the stockholders held for the election of directors by the vote
of a class or classes of stock, a quorum shall consist of the
holders of record of not less than a majority of the outstanding
shares of the Corporation entitled to vote, present either in
person or by proxy."
VII. The number of shares of each class issued is 790,000
shares of Preferred Stock and 9,580,989 shares of Common Stock;
and the number of shares of each class outstanding is 790,000
shares of Preferred Stock and 9,580,989 shares of Common Stock.
The terms upon which the change of shares is hereby made are as
follows:
9,580,989 authorized and issued shares of Common Stock without
par value are hereby changed and reclassified into 1,928,627
authorized and issued shares of Class A Stock without par value and
7,473,172 authorized and issued shares of Common Stock without par
value.
1,419,011 authorized and unissued shares of Common Stock
without par value are hereby changed into 3,621,490 authorized and
unissued shares of Common Stock without par value.
All of the issued and outstanding shares of the Common Stock
being at the time of filing of this Certificate of Amendment owned
and held by a single corporate holder, upon the filing of this
Certificate of Amendment in the Department of State of the State of
New York, each authorized and issued share of Common Stock shall be
changed and reclassified into 1,928,627/9,580,989 authorized and
issued share of Class A Stock and 7,473,172/9,580,989 authorized
and issued share of Common Stock; and the holder of the issued and
outstanding Common Stock may at any time after the filing of this
Certificate of Amendment present at the principal office of the
Corporation, or at such other office or agency of the Corporation
as may be designated by the Corporation for such purpose, for
surrender 25
and cancellation, the certificate or certificates representing the
9,580,989 shares of Common Stock heretofore issued and outstanding,
and shall thereupon receive in exchange therefor a certificate or
certificates for 1,928,627 shares of Class A Stock and a
certificate or certificates for 7,473,172 shares of Common Stock.
VIII. It is not proposed to reduce the capital of the
Corporation by this Certificate of Amendment.
IN WITNESS WHEREOF, the undersigned has made and subscribed
this Certificate of Amendment this 5th day of January, 1950.
EARLE J. MACHOLD
President of Niagara Mohawk Power Corporation
Attest:
CHARLES A. TATTERSALL
Secretary
(CORPORATE SEAL)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On this 5th day of January, 1950, before me personally came
Earle J. Machold, to me known to be the person described in and
who executed the foregoing Certificate of Amendment on behalf of
Niagara Mohawk Power Corporation, and he thereupon duly
acknowledged to me 26
that he executed the same.
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public of the State of New York
No. 31-1158700
Qual in New York County Clk. and Reg.
Term Expires March 30, 1951
(NOTARIAL SEAL)
AFFIDAVIT OF
Officers of the Corporation
pursuant to Section 37 of the Stock Corporation Law
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Earle J. Machold and James H. Morrell, being duly sworn, depose
and say, and each for himself deposes and says, that he, Earle J.
Machold, is the President, and he, James H. Morrell, is the
Treasurer, of Niagara Mohawk Power Corporation, and that by the
foregoing Certificate of Amendment (a) 9,580,989 authorized and
issued shares of Common Stock without par value are changed and
reclassified into 1,928,627 authorized and issued shares of Class A
27
Stock without par value and 7,473,172 authorized and issued
shares of Common Stock without par value, and (b) 1,419,011
authorized and unissued shares of Common Stock without par value
are changed into 3,621,490 authorized and unissued shares of Common
Stock without par value.
EARLE J. MACHOLD
President
JAMES H. MORRELL
Treasurer
Sworn to before me this 5th
day of January, 1950
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public, State of New York
No. 31-1158700
Qual in New York County Clk. and Reg.
Term Expires March 30, 1951
(NOTARIAL SEAL)
Affidavit of
President of the Corporation
pursuant to Section 26-a of the Stock Corporation Law
28
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Earle J. Machold, being duly sworn, deposes and says:
1. That he is the President of Niagara Mohawk Power
Corporation;
2. That provision for the making of the foregoing Certificate
of Amendment and the filing thereof in the Department of State
of the State of New York is made in the Second Amended Plan of
Niagara Hudson Power Corporation pursuant to Section 11(e) of the
Public Utility Holding Company Act of 1935 to cease to be a holding
company and to dissolve, dated August 23, 1949 (hereinafter
referred to as "the Plan");
3. That the Plan has been approved by order of the Securities
and Exchange Commission dated August 25, 1949, pursuant to Section
11(e) of the Public Utility Holding Company Act of 1935;
4. That the Plan has been approved and enforced, as provided
in the Public Utility Holding Company Act of 1935, by the decree
of a court of competent jurisdiction, namely the United States
District Court for the Northern District of New York, made and
dated November 4, 1949, in a proceeding entitled
"In the Matter of
Niagara Hudson Power Corporation
Buffalo Niagara Electric Corporation
Central New York Power Corporation
New York Power and Light Corporation
"A Proceeding to enforce Plans pursuant to Sections 11(e) and
18(f) of the Public Utility Holding Company Act of 1935 "Civil
Action No. 3476";
29
5. That the foregoing decree of the United States District
Court for the Northern District of New York has ceased to be
subject to appeal or review, except that an appeal is pending
which does not involve any questions which, if the decree should
be reversed, would result in invalidating or materially changing
any provision of the Plan designed to be effectuated by the
foregoing Certificate of Amendment;
6. That the form and provisions of the foregoing Certificate
of Amendment have been approved by the said United States District
Court for the Northern District of New York, which made the
foregoing decree;
7. That the filing of the foregoing Certificate of Amendment
has been authorized by the said United States District Court for
the Northern District of New York;
8. That notice of the changes provided for in the foregoing
Certificate of Amendment was given, not less than ten days
preceding the making of such Certificate of Amendment, to the
holders of record of all the outstanding shares or other securities
of Niagara Mohawk Power Corporation entitled to vote or materially
affected by the Plan whose names and addresses are known to Niagara
Mohawk Power Corporation, including those who but for the
provisions of Section 26-a of the Stock Corporation Law, would be
entitled to vote, under the laws of the State of New York or the
certificate of incorporation of Niagara Mohawk Power Corporation,
with relation to such changes, which notice was mailed to each such
stockholder or securityholder directed to him at his address as it
appeared on the stock book of Niagara Mohawk Power Corporation or
to the address designated in a written request filed by such
stockholder or securityholder with Niagara Mohawk Power Corporation
or with the undersigned that notices intended for him shall be
mailed to another address.
30
EARLE J. MACHOLD
Sworn to before me this 5th
day of January, 1950
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public, State of New York
No. 31-1158700
Qual in New York County Clk. and Reg.
Term Expires March 30, 1951
(NOTARIAL SEAL)
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., January 5, 1950
CASE 12733--Petition of Buffalo Niagara Electric Corporation,
Central New York Power Corporation and New York Power and Light
Corporation for (1) approval of consolidation of the said
corporations, and (2) authority to the issuance of certain
securities by the Consolidated Corporation. Petition of Niagara
Hudson Power Corporation for authority to acquire and hold certain
of the capital stock to be issued by the Consolidated Corporation.
* * * * * *
The Public Service Commission hereby consents to and approves
this Certificate of Amendment of Certificate of Incorporation of
Niagara Mohawk Power Corporation. Pursuant to Sections 26-a and 36
of the Stock Corporation Law, as provided in the attached
certificate executed January 5, 1950,--in accordance with the
order of this Commission dated January 20, 1949 as amended by the
order dated December 28, 1949.
PAGE>31
By the Commission
(SEAL)
MURRAY G. TANNER
Secretary
STATE OF NEW YORK )
) ss.: 327
DEPARTMENT OF STATE )
I Certify That I have compared the preceding copy with the
original Certificate of Amendment of Certificate of Consolidation
of "Niagara Hudson Public Service Corporation," filed in this
department on the 5th day of January, 1950, and that such copy is a
correct transcript therefrom and of the whole of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this fifth day of January, one
thousand nine hundred and fifty.
(SEAL)
RUTH M. MINER
Deputy Secretary of State
CERTIFICATE OF CONSOLIDATION
of
NEW YORK POWER AND LIGHT CORPORATION
and
BUFFALO NIAGARA ELECTRIC CORPORATION
32
and
CENTRAL NEW YORK POWER CORPORATION
into
CENTRAL NEW YORK POWER CORPORATION
which is to survive the consolidation and be named
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Sections 26-a and 86 of the Stock Corporation Law
and to Subdivision 4 of Section 11 of the Transportation
Corporations Law.
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed Jan 5, 1950
Tax $129,450.80
Filing Fee $25.00
THOMAS J. CURRAN
Secretary of State
By M. R. Keenan
CERTIFICATE OF CONSOLIDATION
of
NEW YORK POWER AND LIGHT CORPORATION
and
33
BUFFALO NIAGARA ELECTRIC CORPORATION
and
CENTRAL NEW YORK POWER CORPORATION
into
CENTRAL NEW YORK POWER CORPORATION
which is to survive the consolidation and be named
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Sections 26-a and 86 of the Stock Corporation Law
and to Subdivision 4 of Section 11 of the Transportation
Corporations Law.
NIAGARA HUDSON POWER CORPORATION (being the holder of record
of all the outstanding shares of Buffalo Niagara Electric
Corporation, Central New York Power Corporation and New York Power
and Light Corporation entitled to vote on the consolidation of said
corporations), for the purpose of consolidating the said
corporations, Buffalo Niagara Electric Corporation, Central New
York Power Corporation and New York Power and Light Corporation,
into a single corporation, DOES HEREBY CERTIFY:
I. A statement of the name of each corporation to be included in
the consolidation, and the date of filing of its Certificate of
Incorporation in the Department of State of the State of New York
is as follows:
A. Buffalo Niagara Electric Corporation, whose Certificate of
Consolidation was filed in the Department of State of the State of
34
New York on April 1, 1937;
B. Central New York Power Corporation, whose Certificate of
Consolidation was filed in the Department of State of the State of
New York on July 31, 1937;
C. New York Power and Light Corporation, whose Certificate of
Consolidation was filed in the Department of State of the State of
New York on October 26, 1927.
II. The total number of shares which each of the corporations
to be included in the consolidation is authorized to issue, the
number thereof which have a par value, together with the par value
of each, and the number thereof which are without par value, are as
follows:
A. The total number of shares which said Buffalo Niagara
Electric
Corporation is authorized to issue is five million two hundred
thousand (5,200,000); the number thereof which have a par value is
seven hundred thousand (700,000), such shares having a par value of
one hundred dollars ($100) each; the number thereof which are
without par value is four million five hundred thousand
(4,500,000);
B. The total number of shares which said Central New York
Power Corporation is authorized to issue is two million six hundred
forty-two thousand five hundred eighty-four (2,642,584); the number
thereof which have a par value is four hundred ninety-two thousand
35
five hundred eighty-four (492,584), such shares having a par value
of $100 each; the number thereof which are without par value is two
million one hundred fifty thousand (2,150,000);
C. The total number of shares which said New York Power and
Light Corporation is authorized to issue is one million seven
hundred sixty-eight thousand four hundred (1,768,400); the number
thereof which have a par value is three hundred thousand
(300,000), such shares having a par value of one hundred dollars
($100) each; the number thereof which are without par value is one
million four hundred sixty-eight thousand four hundred (1,468,400).
III. The name of the consolidated corporation is Niagara
Mohawk Power Corporation.
IV. A. The total number of shares that may be issued by the
consolidated corporation (hereinafter sometimes called the
"Corporation") is twelve million two hundred thousand (12,200,000),
of which one million two hundred thousand (1,200,000) are to have a
par value of one hundred dollars ($100) each and eleven million
(11,000,000) are to be without par value.
B. The capital of the Corporation shall be at least equal
to the sum of the aggregate par value of all issued shares having a
par value, plus $10.00 in respect to every issued share without par
value, plus such amounts as, from time to time, by resolution of
the Board of Directors, may be transferred thereto. Subject to the
laws creating and defining the duties of the Public Service
Commission, shares of the Corporation without par value, not issued
under Article VIII of this Certificate of Consolidation, may be
issued from time to time for such consideration as may be fixed by
the Board of Directors of the Corporation.
C. The shares of the Corporation are to be classified as
follows:
1,200,000 shares are to be Preferred Stock with a par value
of one hundred dollars ($100) each; 11,000,000 shares are to be
36
Common Stock without par value.
D. All of the designations, preferences, privileges and voting
powers of the shares of each class and the restrictions and
qualifications thereof are to be as follows:
PREFERRED STOCK
(1) The shares of the Preferred Stock may be issued from time
to time in series. Seven hundred ninety thousand (790,000) shares
of the Preferred Stock shall be initially issued as follows:
200,000 shares in the 3.40% Series,
350,000 shares in the 3.60% Series,
240,000 shares in the 3.90% Series,
each of which series is hereinafter described. The remaining
shares of Preferred Stock may be issued in the 3.40%, 3.60% or
3.90% series or such one or more other series as may be determined
from time to time by the Board of Directors, each of said other
series to be distinctively designated. Subject to the limitations
hereinafter stated and to the further limitation that shares having
voting power shall not have more than one vote each, the Board of
Directors is authorized to fix from time to time before the
issuance of shares of each series of the Preferred Stock other than
those issued in the 3.40%, 3.60% and 3.90% Series, the
designations, preferences, privileges and voting powers of the
shares of such additional series and the restrictions or
qualifications thereof except those hereinafter set forth under the
heading "General Provisions Applicable to All Series of Preferred
Stock". All shares of any one series of Preferred Stock shall be
alike in every particular. The shares of all series shall rank
equally, and shall be identical in all respects except in respect
of the matters set forth in the following subdivisions lettered (A)
to (H), inclusive:
(A) Designation;
37
(B) The dividend rate and the date or dates from which
dividends shall be cumulative;
(C) Voting rights;
(D) The sum payable per share upon the voluntary dissolution,
liquidation or winding up of the Corporation and the sum payable
per share upon the involuntary dissolution, liquidation or winding
up of the Corporation, which sums, in each and every case, shall be
a stated amount (not less than $100 per share) with respect to
dissolution, liquidation or winding up during any specified period
or periods, plus an amount equal to the dividends accrued and
unpaid thereon, whether or not earned or declared;
(E) Whether or not the shares shall be redeemable, and if made
redeemable, the redemption price or prices per share, which prices,
in each and every case, shall be a stated amount with respect to
redemption during any specified period or periods, plus an amount
equal to the dividends accrued and unpaid thereon to the date fixed
for redemption, whether or not earned or declared;
(F) Whether or not the shares shall be made convertible into
or exchangeable for other securities of the Corporation, and if
made convertible or exchangeable, the conversion price or prices,
or the rate or rates of exchange, and the other terms and
conditions on which such conversion or exchange may be made;
(G) Whether or not there shall be a sinking fund, or other
fund analogous thereto, with respect to the shares of each series,
and the terms and provisions of such fund, if any; and
(H) Any other relative, participating, option or other rights,
preferences, privileges, restrictions or qualifications of the
shares of each series not inconsistent with the provisions
applicable to all shares of the Preferred Stock irrespective of
series.
Particular Provisions Applicable to Preferred Stock, 3.40%
Series
38
(2) The designation, preferences, privileges and voting powers
of the shares of the Preferred Stock, 3.40% Series, and the
restrictions or qualifications thereof (insofar as they differ from
or supplement the provisions which are applicable to all shares of
the Preferred Stock irrespective of series), are as follows:
(A) The series shall be designated as Preferred Stock, 3.40%
Series;
(B) The dividend rate thereof shall be three and four-tenths
per cent (3.40%) per annum. The dividends on the shares of the
Preferred Stock, 3.40% Series resulting from the conversions
provided for in Article VIII of the Certificate of Consolidation of
New York Power and Light Corporation and Buffalo Niagara Electric
Corporation and Central New York Power Corporation into Central New
York Power Corporation, which is to survive the consolidation and
be named Niagara Mohawk Power Corporation (which Certificate of
Consolidation is hereinafter referred to as the "1950 Certificate
of Consolidation"), shall be cumulative from the first day of the
calendar month in which such 1950 Certificate of Consolidation is
filed in the Department of State. All other shares of the
Preferred Stock, 3.40% Series, if any, shall be issued with
accruals of dividends uniform with the unpaid accruals of
dividends, if any, on the Preferred Stock, 3.40% Series outstanding
at the time of the issue thereof;
(C) Except as hereinafter provided under the heading "General
Provisions Applicable to All Series of Preferred Stock", the
Preferred Stock, 3.40% Series shall have no voting rights
whatsoever and is specifically excluded from the right to vote in a
proceeding for mortgaging the property and franchises of the
Corporation pursuant to Section 16 of the Stock Corporation Law,
for authorizing any guaranty pursuant to Section 19 of said Law,
for sale of the franchises and property of the Corporation pursuant
to Section 20 of said Law, for consolidation pursuant to Section 86
of said Law, for voluntary dissolution pursuant to Section 105 of
said Law or for change of name pursuant to the General Corporation
Law or pursuant to Section 35 of the Stock Corporation Law;
39
(D) The sum per share payable upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $104.50 per
share on or before February 28, 1951, and thereafter $103.50 per
share, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared;
(E)The sum per share payable upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $100 per
share plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 3.40% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $104.50 per share on or before February 28,
1951, and thereafter $103.50 per share, in each case plus an amount
equal to the dividends accrued and unpaid thereon to the date fixed
for redemption, whether or not earned or declared;
(G) The shares of the Preferred Stock, 3.40% Series shall not
be convertible into or exchangeable for other securities of the
Corporation; and
(H) There shall be no sinking fund with respect to the shares
of the Cumulative Preferred Stock, 3.40% Series.
Particular Provisions Applicable to Preferred Stock, 3.60%
Series
(3) The designation, preferences, privileges and voting powers
of the shares of the Preferred Stock, 3.60% Series, and the
restrictions or qualifications thereof (insofar as they differ from
or supplement the provisions which are applicable to all shares of
the Preferred Stock irrespective of series), are as follows:
(A) The series shall be designated as Preferred Stock, 3.60%
Series;
40
(B) The dividend rate thereof shall be three and six-tenths
per cent (3.60%) per annum. The dividends on the shares of the
Preferred Stock, 3.60% Series resulting from the conversions
provided in Article VIII of the 1950 Certificate of Consolidation
shall be cumulative from the first day of the calendar month in
which such 1950 Certificate of Consolidation is filed in the
Department of State. All other shares of the Preferred Stock,
3.60% Series, if any, shall be issued with accruals of dividends
uniform with the unpaid accruals of dividends, if any, on the
Preferred Stock, 3.60% Series outstanding at the time of the issue
thereof;
(C) Except as hereinafter provided under the heading "General
Provisions Applicable to All Series of Preferred Stock", the
Preferred Stock, 3.60% Series shall have no voting rights
whatsoever and is specifically excluded from the right to vote in a
proceeding for mortgaging the property and franchises of the
Corporation pursuant to Section 16 of the Stock Corporation Law,
for authorizing any guaranty pursuant to Section 19 of said Law,
for sale of the franchises and property of the Corporation pursuant
to Section 20 of said Law, for consolidation pursuant to Section 86
of said Law, for voluntary dissolution pursuant to Section 105 of
said Law or for change of name pursuant to the General Corporation
Law or pursuant to Section 35 of the Stock Corporation Law;
(D) The sum per share payable upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $105.85 per
share on or before December 31, 1950, and thereafter $104.85 per
share, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared;
(E) The sum per share payable upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 3.60% Series shall be
redeemable at the option of the Board of Directors of the
41
Corporation, either as whole or in part, at any time at a
redemption price of $105.85 per share on or before December 31,
1950, and thereafter $104.85 per share, in each case plus an amount
equal to the dividends accrued and unpaid thereon to the date fixed
for redemption, whether or not earned or declared;
(G) The shares of the Preferred Stock, 3.60% Series shall not
be convertible into or exchangeable for other securities of the
Corporation; and
(H) There shall be no sinking fund with respect to the shares
of the Preferred Stock, 3.60% Series.
Particular Provisions Applicable to Preferred Stock, 3.90%
Series
(4) The designation, preferences, privileges and voting powers
of the shares of the Preferred Stock, 3.90% Series, and the
restrictions or qualifications thereof (insofar as they differ from
or supplement the provisions which are applicable to all shares of
the Preferred Stock irrespective of series), are as follows:
(A) The series shall be designated as Preferred Stock, 3.90%
Series;
(B) The dividend rate thereof shall be three and nine-tenths
per cent (3.90%) per annum. The dividends on the shares of the
Preferred Stock, 3.90% Series resulting from the conversions
provided for in Article VIII of the 1950 Certificate of
Consolidation shall be cumulative from the first day of the
calendar month in which such 1950 Certificate of Consolidation is
filed in the Department of State. All other shares of the
Preferred Stock, 3.90% Series, if any, shall be issued with
accruals of dividends uniform with the unpaid accruals of
dividends, if any, on the Preferred Stock, 3.90% Series outstanding
at the time of the issue thereof;
(C) Except as hereinafter provided under the heading "General
Provisions Applicable to All Series of Preferred Stock", the
42
Preferred Stock, 3.90% Series shall have no voting rights
whatsoever and is specifically excluded from the right to vote in a
proceeding for mortgaging the property and franchises of the
Corporation pursuant to Section 16 of the Stock Corporation Law,
for authorizing any guaranty pursuant to Section 19 of said Law,
for sale of the franchises and property of the Corporation pursuant
to Section 20 of said Law, for consolidation pursuant to Section 86
of said Law, for voluntary dissolution pursuant to Section 105 of
said Law or for change of name pursuant to the General Corporation
Law or pursuant to Section 35 of the Stock Corporation Law;
(D) The sum per share payable upon any voluntary dissolution,
liquidation or winding up of the Corporation shall be $105 per
share plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared;
(E)The sum per share payable upon involuntary dissolution,
liquidation or winding up of the Corporation shall be $100 per
share plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 3.90% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $107 per share on or before April 30, 1950, and
thereafter $106 per share, in each case plus an amount equal to the
dividends accrued and unpaid thereon to the date fixed for
redemption, whether or not earned or declared;
(G) The shares of the Preferred Stock, 3.90% Series shall not
be convertible into or exchangeable for other securities of the
Corporation; and
(H) There shall be no sinking fund with respect to the shares
of the Preferred Stock, 3.90% Series.
General Provisions Applicable to All Series of Preferred Stock
43
(5) The following provisions shall apply to all shares of the
Preferred Stock irrespective of series:
(A) The holders of the Preferred Stock of each series shall be
entitled to receive, but only when, as and if declared by the Board
of Directors, dividends at the rate fixed for such series and no
more. Such dividends shall be payable on the last day of March,
June, September and December in each year and shall be cumulative
from such date as may be fixed for the series. All dividends
payable on the Preferred Stock shall be fully paid, or declared and
set apart for payment, before any dividends on the Common Stock
shall be paid or set apart for payment so that if, for all dividend
periods terminating on the same or an earlier date, dividends on
all outstanding shares of the Preferred Stock at the rates fixed
for the respective series shall not have been paid or set apart for
payment, the deficiency shall be fully paid or set apart for
payment before any dividends shall be paid or set apart for payment
on the Common Stock. Dividends in full shall not be paid or set
apart for payment on the Preferred Stock of any one series for any
dividend period unless dividends in full have been or are
contemporaneously paid or set apart for payment on the Preferred
Stock of all series for all dividend periods terminating on the
same or an earlier date. When the stated dividends are not paid in
full on all series of the Preferred Stock, the shares of all series
shall share ratably in the payment of dividends, including
accumulations, if any, in accordance with the sums which would be
payable on said shares if all dividends were paid in full. A
"dividend period" is the period between any two consecutive
dividend payment dates, excluding the first of such dates, as fixed
for the series to which a share or shares shall belong. Accruals
of dividends shall not bear interest.
(B) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
Preferred Stock of each and every series then outstanding shall be
entitled to receive out of the net assets of the Corporation,
whether capital or surplus, the sums per share fixed for the shares
of the respective series and payable upon such dissolution,
44
liquidation or winding up, plus, in the case of each share, an
amount equal to the dividends accrued and unpaid thereon, whether
or not earned or declared, before any distribution of the assets of
the Corporation shall be made to the holders of the Common Stock,
as such.
If the assets distributable on such dissolution, liquidation or
winding up shall be insufficient to permit the payment to the
holders of the Preferred Stock of the full amounts to which they
respectively are entitled as aforesaid, then said assets shall be
distributed ratably among the holders of the respective series of
the Preferred Stock in proportion to the sums which would be
payable on such dissolution, liquidation or winding up if all such
sums were paid in full in preference and priority over the shares
of the Common Stock.
After payment to the holders of the Preferred Stock of the full
amounts to which they respectively are entitled as aforesaid, the
holders of the Preferred Stock, as such, shall have no right or
claim to any of the remaining assets of the Corporation.
The sale, conveyance, exchange or transfer of all or
substantially all of the property of the Corporation, or the merger
or consolidation into or with any other corporation, shall not be
deemed a dissolution, liquidation or winding up for the purposes of
this subdivision (B).
(C) At the option of the Board of Directors of the
Corporation, the Corporation may redeem any series of Preferred
Stock which has been made redeemable, either as a whole or in
part, at the redemption price determined for such series; provided,
however, that not less than 30 nor more than 60 days prior to the
date fixed for redemption a notice of the time and place thereof
shall be mailed to the holders of record of the Preferred Stock so
to be redeemed on a date fixed by the Board of Directors; and
provided, further, that in every case of redemption of less than
all of the outstanding shares of any one series of Preferred Stock,
such redemption shall be made pro rata, or the shares of such
series to
45
be redeemed shall be chosen by lot in such manner as may be
prescribed by resolution of the Board of Directors. At any time
after notice of redemption has been mailed as aforesaid to the
holders of stock so to be redeemed, the Corporation may deposit the
aggregate redemption price with a bank or trust company having its
principal office in the State of New York and according to its last
published statement a capital, surplus and undivided profits
aggregating at least $10,000,000, named in such notice, payable on
the date fixed for redemption as aforesaid and in the amounts
aforesaid to the respective orders of the holders of the shares so
to be redeemed, upon endorsement to the Corporation or otherwise,
as may be required, and upon surrender of the certificates for such
shares. Upon deposit of said money as aforesaid, or, if no such
deposit is made, upon the date fixed for redemption (unless the
Corporation fails to make payment of the redemption price as set
forth in such notice), such holders shall cease to be stockholders
with respect to said shares, and from and after the making of said
deposit, or, if no such deposit is made, from and after the date
fixed for redemption (the Corporation not having failed to make
payment of the redemption price as set forth in such notice), said
shares shall not be deemed to be outstanding and such holders shall
have no interest in or claim against the Corporation with respect
to said shares, but shall be entitled only to receive said moneys
on the date fixed for redemption as aforesaid from said bank or
trust company, or from the Corporation, as the case may be, without
interest thereon, upon endorsement to the Corporation or otherwise,
as may be required, and upon surrender of the certificates for such
shares, as aforesaid. If at the time of the mailing of notice of
redemption as aforesaid to the holders of stock so to be redeemed
the Corporation shall not have deposited the aggregate redemption
price as aforesaid, such notice may state that it is subject to the
deposit of the aggregate redemption price with a bank or trust
company having its principal office in the State of New York and
according to its last published statement a capital, surplus and
undivided profits aggregating at least $10,000,000, named in such
notice, on or before the date fixed for redemption, and any notice
of redemption containing such statement shall be of no effect
unless such aggregate redemption price is so deposited on or before
such date fixed for redemption.
46
In case the holder of any such Preferred Stock which shall have
been called for redemption shall not, within six years after said
deposit, claim the amount deposited as above stated for the
redemption thereof, such bank or trust company shall upon demand
pay over to the Corporation such unclaimed amount and such bank or
trust company shall thereupon be relieved from all responsibility
to such holder, and such holder shall look only to the Corporation
for the payment thereof. Any interest accrued on any funds so
deposited shall belong to the Corporation.
(D) Nothing herein contained shall limit any legal right of
the Corporation to purchase or otherwise acquire any shares of the
Preferred Stock.
(E) So long as any shares of the Preferred Stock of any series
are outstanding, the Corporation shall not, without the consent
(given in writing or by vote at a meeting called for that purpose
in the manner prescribed by the By-Laws of the Corporation) of the
holders of record of at least a majority of the total number of
shares of the Preferred Stock of all series then outstanding:
(1) Issue or permit any wholly owned subsidiary (as
hereinafter defined) to issue any unsecured notes, debentures or
other securities representing unsecured indebtedness or assume or
permit any wholly owned subsidiary to assume any such unsecured
securities, for purposes other than the refunding of outstanding
securities, secured or unsecured, theretofore issued or assumed by
the Corporation or such wholly owned subsidiary or the redemption
or other retirement of outstanding shares of the Preferred Stock or
of outstanding shares of preferred stock of such wholly owned
subsidiary, if, immediately after such issue or assumption, the
total principal amount of all unsecured notes, debentures or other
securities representing unsecured indebtedness issued or assumed by
the Corporation or its wholly owned subsidiaries and then
outstanding (including unsecured securities representing debt then
to be issued or assumed but excluding any such securities to be
retired in connection with
47
such issue or assumption) would exceed 10% of the aggregate of (a)
the total principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by the
Corporation or its wholly owned subsidiaries and then to be
outstanding, (b) the capital of the Corporation and (c) the
consolidated surplus of the Corporation and its wholly owned
subsidiaries determined in accordance with generally accepted
accounting practices;
(2) Permit any majority-owned subsidiary (as hereinafter
defined) to issue or assume any unsecured notes, debentures or
other securities representing unsecured indebtedness, for purposes
other than the refunding of outstanding securities, secured or
unsecured, theretofore issued or assumed by such majority-owned
subsidiary or the redemption or other retirement of outstanding
shares of preferred stock of such majority-owned subsidiary, if,
immediately after such issue or assumption, the total principal
amount of all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed by such
majority-owned subsidiary and then outstanding (including unsecured
securities representing debt then to be issued or assumed but
excluding any such securities to be retired in connection with such
issue or assumption) would exceed 10% of the aggregate of (a) the
total principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by such
majority-owned subsidiary and then to be outstanding, (b) the
capital of such majority-owned subsidiary and (c) the surplus of
such majority- owned subsidiary determined in accordance with
generally accepted accounting practices; or
(3) Consolidate with or into any other corporation or
corporations, unless such consolidation, or the issuance of the
stock to be issued in connection with such consolidation, shall
have been ordered, approved or permitted by the Federal Securities
and Exchange Commission under the provisions of the Public Utility
Holding Company Act of 1935 or by any successor commission under
said Act; provided that the provisions of this paragraph (3) shall
not apply to the
48
purchase or other acquisition by the Corporation of the franchises
or assets of another corporation, or otherwise apply to any
transaction which does not involve a consolidation under the laws
of the State of New York.
The term "wholly owned subsidiary" or "wholly owned
subsidiaries", as used in this subdivision (E), shall mean any
corporation or corporations 95% or more of all classes of stock of
which at the time is owned, directly or indirectly, by the
corporation in question or by one or more wholly owned subsidiaries
of such corporation or by such corporation and by one or more
wholly owned subsidiaries of such corporation.
The term "majority-owned subsidiary" or "majority-owned
subsidiaries", as used in this subdivision (E), shall mean any
corporation or corporations more than 50% of the voting stock, but
less than 95% of all classes of stock, of which at the time is
owned, directly or indirectly, by the corporation in question or by
one or more subsidiaries of such corporation or by such corporation
and by one or more subsidiaries of such corporation.
The term "subsidiary" or "subsidiaries", as used in this
subdivision (E), shall mean wholly owned subsidiaries and majority-
owned subsidiaries, as above defined.
The term "voting stock", as used in this subdivision (E), shall
mean stock at the time entitling the holders thereof to elect a
majority of the board of directors of the corporation in question.
(F) So long as any shares of the Preferred Stock of any series
are outstanding, the Corporation shall not, without the consent
(given in writing or by vote at a meeting called for that purpose
in the manner prescribed by the By-Laws of the Corporation) of the
holders of record of at least two-thirds of the total number of
shares of the Preferred Stock of all series then outstanding:
(1) Create or authorize any kind of stock ranking prior to the
Preferred Stock with respect to the payment of dividends or upon
49
the dissolution, liquidation or winding up of the Corporation,
whether voluntary or involuntary, or create or authorize any
obligation or security convertible into shares of any such kind of
stock;
(2) Amend, alter, change or repeal any of the express terms of
the Preferred Stock so as to affect the holders thereof adversely;
(3) Permit any subsidiary to issue any shares of preferred
stock unless such shares are issued to the Corporation;
(4) Sell any shares of preferred stock of any subsidiary
unless at the same time the Corporation shall sell all shares of
every class of stock of such subsidiary owned by it;
(5) Make any payment or distribution out of capital or capital
surplus (other than dividends payable in stock ranking junior to
the Preferred Stock) to any holder of any stock ranking junior to
the Preferred Stock; or
(6) Issue any shares of any series of the Preferred Stock
(other than the 790,000 shares of Preferred Stock to be initially
issued) or shares ranking on a parity with them, or reissue any
redeemed or exchanged shares of the Preferred Stock of any series
or shares ranking on a parity with them, unless (a) the shares so
to be issued or reissued are issued or reissued in connection with
the redemption of, or in exchange for, at least an equal number of
shares of the Preferred Stock of another series then outstanding,
or (b) the consolidated income of the Corporation and its
subsidiaries (determined as hereinafter provided) for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which the issuance or
reissuance of such additional shares is authorized by the Board of
Directors of the Corporation, shall have been in the aggregate not
less than one and one-half times the sum of the interest
requirements (adjusted by provision for amortization of debt
discount and expense or of premium on debt, as the case may be) for
one year on all of the indebtedness of the Corporation and its
subsidiaries outstanding at the date of 50
such proposed issue or reissue (excluding any indebtedness proposed
to be retired in connection with such issue or reissue) and the
full dividend requirements for one year on all outstanding shares
(including those then proposed to be issued or reissued but
excluding any shares proposed to be retired in connection with such
issue or reissue) of the Preferred Stock and all other stock of
the Corporation, if any, ranking prior to or on a parity with the
Preferred Stock with respect to the payment of dividends or upon
the dissolution, liquidation or winding up of the Corporation,
whether voluntary or involuntary.
"Consolidated income" for any period for the purposes of this
paragraph (6) shall be computed by adding to the consolidated net
income of the Corporation and its subsidiaries for said period,
determined in accordance with generally accepted accounting
practices, as adjusted by action of the Board of Directors of the
Corporation as hereinafter provided, the amount deducted for
interest (adjusted as above provided) in determining such net
income. In determining such consolidated net income for any
period, there shall be deducted, in addition to other items of
expense, the amount charged to income for said period on the books
of the Corporation and its subsidiaries for taxes and depreciation
expense. In the determination of consolidated income for the
purposes of this paragraph (6), the Board of Directors of the
Corporation may, in the exercise of due discretion, make
adjustments by way of increase or decrease in such consolidated
income to give effect to changes therein resulting from any
acquisition of properties or from any redemption, acquisition,
purchase, sale or exchange of securities by the Corporation or its
subsidiaries either prior to the issuance or reissuance of any
shares of Preferred Stock then to be issued or reissued or in
connection therewith.
The term "subsidiary", as used in this subdivision (F), shall
mean any corporation more than 50% of the voting stock (i.e., stock
at the time entitling the holders thereof to elect a majority of
the board of directors of such corporation) of which at the time is
51
owned, directly or indirectly, by the Corporation or by one or more
subsidiaries of the Corporation, or by the Corporation and by one
or more subsidiaries of the Corporation.
(G) So long as any shares of the Preferred Stock of any series
are outstanding, the Corporation shall not classify or reclassify
outstanding shares of any series of the Preferred Stock so as to
affect the holders of any series adversely without the consent
(given in writing or by vote at a meeting called for that purpose
in the manner prescribed by the By-Laws of the Corporation) of the
holders of record of at least two-thirds of the total number of
shares of each such series then outstanding so affected adversely.
(H) Whenever dividends payable on the Preferred Stock shall be
in default in an aggregate amount equivalent to four full quarterly
dividends on all shares of such Preferred Stock then outstanding,
thereafter and until all dividends on all shares of the Preferred
Stock at the time in default shall have been paid or declared and
set apart for payment, the holders of shares of the Preferred
Stock, voting separately as a class and regardless of series, shall
be entitled to elect a majority of the Board of Directors, as then
constituted; and the holders of any other class or classes of stock
of the Corporation entitled to vote for the election of directors
shall be entitled, voting separately as a class, to elect the
remainder of the Board of Directors of the Corporation, as then
constituted. The right of the holders of the Preferred Stock
voting separately as a class to elect members of the Board of
Directors of the Corporation as aforesaid shall continue until such
time as all dividends on all shares of the Preferred Stock in
default shall have been paid in full, or declared and set apart for
payment (and such dividends shall be paid, or declared and set
apart for payment, out of assets available therefor as soon as is
reasonably practicable), at which time the right of the holders of
shares of the Preferred Stock voting separately as a class to elect
members of the Board of Directors as aforesaid shall terminate,
subject to revesting in the event of each and every subsequent
default of the character above mentioned.
52
The aforesaid rights of the Preferred Stock and of any other
class or classes of stock of the Corporation to vote separately for
the election of members of the Board of Directors may be exercised
at any annual meeting of stockholders of the Corporation or,
within the limitations hereinafter provided, at any special meeting
of stockholders of the Corporation held for the purpose of electing
directors.
At any time when the right of the holders of the Preferred
Stock to elect a majority of the Board of Directors is vested as
aforesaid, a special meeting of stockholders of the Corporation may
be called and held for the purpose of electing directors in the
following manner (unless under the provisions of the By-Laws of the
Corporation, as then in effect, an annual meeting of stockholders
of the Corporation is to be held within 60 days after the vesting
in the holders of the Preferred Stock of the right to elect members
of the Board of Directors or unless, since the vesting of such
right, a meeting of stockholders of the Corporation has theretofore
been held at which holders of the Preferred Stock were entitled to
elect members of the Board of Directors):
Upon the written request of the holders of record of not less
than 10% of the total number of shares of the Preferred Stock then
outstanding, regardless of series, addressed to the Secretary of
the Corporation, the Secretary or an Assistant Secretary of the
Corporation shall call a special meeting of the stockholders
entitled to vote for the election of directors, for the purpose of
electing a majority of the Board of Directors by the vote of the
Preferred Stock, and the remainder of the Board of Directors by the
vote of such other class or classes of stock as may then be
entitled to vote for the election of directors, voting separately
as hereinbefore provided. Such meeting shall be held within 50
days after personal service of the said written request upon the
Secretary of the Corporation, or within 50 days after mailing the
same within the United States of America by registered mail
addressed to the Secretary of the Corporation at its principal
office. If such meeting shall not be called within 20 days of such
personal service or mailing, then the holders of record of not less
than 10% of the
53
total number of shares of the preferred Stock then outstanding,
regardless of series, may designate in writing one of their number
to call such special meeting at the expense of the Corporation, and
such meeting may be called by such person so designated upon the
notice required for annual meetings of stockholders and shall be
held at the place for the holding of annual meetings of
stockholders of the Corporation. Any holder of the Preferred Stock
so designated shall have access to the stock books of the
Corporation for the purpose of causing said meeting to be called as
aforesaid.
At any annual or special meeting held for the purpose of
electing directors when the holders of the Preferred Stock shall
be entitled to elect members of the Board of Directors as
aforesaid, the presence in person or by proxy of the holders of a
majority of the total number of outstanding shares of the class or
classes of stock of the Corporation other than the Preferred Stock
entitled to elect directors as aforesaid shall be required to
constitute a quorum of such class or classes for the election of
directors by such class or classes, and the presence in person or
by proxy of the holders of a majority of the total number of
outstanding shares of the Preferred Stock shall be required to
constitute a quorum of such class for the election of directors by
such class; provided, however, that a majority of those holders of
the stock of either such class (or classes) who are present in
person or by proxy shall have power to adjourn such meeting for the
election of directors by such class from time to time without
notice other than announcement at the meeting.
At any meeting of stockholders for the purpose of electing
directors during such times as the holders of shares of the
Preferred Stock shall be entitled to elect members of the Board of
Directors as aforesaid, each holder of shares of the Preferred
Stock shall be entitled to as many votes as shall equal the number
of votes which (except for this provision as to cumulative voting)
he would be entitled to cast for the election of directors with
respect to his shares of stock multiplied by the number of
directors to be elected by the holders of the Preferred Stock, and
he may cast all such votes
54
he may cast all of such votes for a single director or may
distribute them among the number to be voted for, or any two or
more of them, as he may see fit.
Upon the election of a majority of the Board of Directors by
the holders of the Preferred Stock, the term of office of all
directors then in office shall terminate; and no delay or failure
by the holders of other classes of stock in electing the remainder
of the Board of Directors shall invalidate the election of a
majority thereof by the holders of the Preferred Stock.
Upon any termination of the right of the holders of the
Preferred Stock to elect members of the Board of Directors as
aforesaid, the term of office of the directors then in office shall
terminate upon the election of a majority of the Board of
Directors, as then constituted, at a meeting of the holders of the
class or classes of stock of the Corporation then entitled to vote
for directors, which meeting may be held at any time after such
termination of such right, and shall be called upon request of
holders of record of such class or classes of stock then entitled
to vote for directors, in like manner and subject to similar
conditions as hereinbefore in this subdivision (H) provided with
respect to the call of a special meeting of stockholders for the
election of directors by the holders of the Preferred Stock.
In case of any vacancy in the office of a director occurring
among the directors elected by the holders of the Preferred Stock
as aforesaid, or of a successor to any such director, the
remaining directors so elected, by vote of a majority thereof, or
the remaining director so elected if there be but one, may elect a
successor or successors to hold office for the unexpired term of
the director or directors whose place or places shall be vacant,
and such successor or successors shall be deemed to have been
elected by the holders of the Preferred Stock as aforesaid.
Likewise, in case of any vacancy in the office of a director
occurring (at a time when the holders of the Preferred Stock shall
be entitled to elect members of the Board of Directors as
aforesaid) among the directors elected by the holders of the class
or classes of stock of the Corporation other than the 55
Preferred Stock, or of a successor to any such director, the
remaining directors so elected, by vote of a majority thereof, or
of the remaining director so elected if there be but one, may elect
a successor or successors to hold office for the unexpired term of
the director or directors whose place or places shall be vacant,
and such successor or successors shall be deemed to have been
elected by such holders of the class or classes of stock of the
Corporation other than the Preferred Stock.
(I) Except as herein otherwise expressly provided and except
when some mandatory provision of law shall be controlling and,
except as regards the special rights of any series of the Preferred
Stock as provided in the resolutions creating such series,
whenever shares of two or more series of the Preferred Stock are
outstanding, no particular series of the Preferred Stock shall be
entitled to vote as a separate series on any matter, and all
shares of the Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
stockholders of the Corporation by classes may now or hereafter be
required.
(J) The Preferred Stock of the Corporation shall not entitle
any holder thereof as a matter of right to subscribe for, purchase
or receive any part of the unissued stock of the Corporation or any
stock of the Corporation to be issued by reason of any increase of
the authorized capital stock of the Corporation or any stock of the
Corporation purchased by the Corporation or by its nominee or
nominees, or to subscribe for, purchase or receive any rights to or
options to purchase any such stock or any bonds, certificates of
indebtedness, debentures or other securities convertible into or
carrying options or warrants to purchase stock or other securities
of the Corporation, or to have any other preemptive rights as now
or hereafter defined by the laws of the State of New York.
COMMON STOCK
(6) The following provisions shall apply to all shares of the
Common Stock:
56
(A) Out of the assets of the Corporation available for
dividends remaining after full dividends on all stock having
priority as to dividends over the Common Stock shall have been paid
or declared and set apart for payment and after making such
provision, if any, as the Board of Directors may deem necessary or
advisable for working capital and reserves or otherwise, then, and
not otherwise, dividends may be paid upon the Common Stock, but
only when and as determined by the Board of Directors.
(B) Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after there shall
have been paid to or set apart for holders of all stock having
priority over the Common Stock the full preferential amounts to
which they are respectively entitled, the holders of the Common
Stock shall be entitled to receive pro rata all of the remaining
assets of the Corporation available for distribution to its
stockholders. The sale, conveyance, exchange or transfer of all or
substantially all of the property of the Corporation, or the merger
or consolidation into or with any other corporation, shall not be
deemed a liquidation, dissolution or winding up for the purposes of
this subdivision (B).
The Board of Directors, by vote of a majority of the members
thereof, may distribute in kind to the holders of the Common Stock
such remaining assets of the Corporation, or may sell, transfer or
otherwise dispose of the remaining assets of the Corporation, or
any part thereof, to any other corporation or to any person, and
receive payment therefor wholly or partly in cash or in stock or in
obligations of such corporation or person, and may sell, transfer
or otherwise dispose of all or any of such consideration received
therefor and distribute the proceeds thereof to the holders of the
Common Stock.
(C) The respective shares of the Common Stock shall entitle
the holders thereof to one vote for each share of such Common
Stock held by them, respectively, except as herein otherwise
expressly provided. At all meetings of stockholders held for the
purpose of electing Directors, each holder of shares of the Common
Stock shall be entitled to as many votes as shall equal the number
of votes which
57
which (except for this provision as to cumulative voting) he would
be entitled to cast for the election of Directors with respect to
his shares of stock multiplied by the number of Directors to be
elected by the holders of shares of Common Stock, and he may cast
all of such votes for a single Director or may distribute them
among the number to be voted for, or any two or more of them, as he
may see fit.
(D) The holders of the Common Stock shall have preemptive
rights as the same are defined in Section 39 of the Stock
Corporation Law, except that shares or other securities offered for
sale shall not be subject to such preemptive rights (1) if not so
subject under said Section 39 or (2) if they are the subject of a
public offering or of an offering to or through underwriters or
investment bankers who shall have agreed promptly to make a public
offering of such shares.
(7) At all meetings of the stockholders of the Corporation a
quorum must be present for the transaction of business, and except
as otherwise provided in this Article IV a quorum shall consist of
the holders of record of not less than a majority of the
outstanding shares of the Corporation entitled to vote, present
either in person or by proxy.
V. The office of the Corporation is to be located in the City
of Syracuse, County of Onondaga, State of New York.
VI. The duration of the Corporation shall be perpetual.
VII. The number of Directors of the Corporation shall be not
less than 3 nor more than 21.
VIII. The terms and conditions of the consolidation, the mode
of carrying the same into effect and the manner of converting the
shares of each of the constituent corporations into shares of the
Corporation are as follows:
58
A. All of the issued and outstanding shares of Preferred
Stock, 3.60% Series ($100 par value) of Buffalo Niagara Electric
Corporation (being 350,000 shares) are hereby converted, share for
share, into the same number (350,000) of shares of the Preferred
Stock, 3.60% Series of the Corporation. The holders of said shares
of the Preferred Stock, 3.60% Series of Buffalo Niagara Electric
Corporation shall also be entitled to receive out of the surplus of
the Corporation, upon surrender of the certificate or certificates
representing such stock, an amount of cash equal to the dividends
accrued and unpaid upon such stock to the date of the filing of
this Certificate in the Department of State.
B. All of the issued and outstanding shares of the Cumulative
Preferred Stock, 3.40% Series ($100 par value) of Central New York
Power Corporation (being 200,000 shares) are hereby converted,
share for share, into the same number (200,000) of shares of the
Preferred Stock, 3.40% Series of the Corporation. The holders of
said shares of Cumulative Preferred Stock, 3.40% Series of Central
New York Power Corporation shall also be entitled to receive out of
the surplus of the Corporation, upon surrender of the certificate
or certificates representing such stock, an amount of cash equal to
the dividends accrued and unpaid upon such stock to the date of the
filing of this Certificate in the Department of State.
C. All of the issued and outstanding shares of Cumulative
Preferred Stock, 3.90% Series ($100 par value) of New York Power
and Light Corporation (being 240,000 shares) are hereby converted,
share for share, into the same number (240,000) of shares of the
Preferred Stock, 3.90% Series of the Corporation. The holders of
said shares of the Cumulative Preferred Stock, 3.90% Series of New
York Power and Light Corporation shall also be entitled to receive
out of the surplus of the Corporation, upon surrender of the
certificate or certificates representing such stock, an amount of
cash equal to the dividends accrued and unpaid on such stock to the
date of the filing of this Certificate in the Department of State.
D. All of the issued and outstanding shares of the Common
Stock of Central New York Power Corporation (being 1,586,358
shares) are
59
hereby converted into shares of the Common Stock of the
Corporation, on the basis of each share of such Common stock of
Central New York Power Corporation being converted into 5,180,989
shares of the Common Stock of the Corporation.
1,586,358
E. All of the issued and outstanding shares of the Common
Stock of New York Power and Light Corporation (being 1,400,000
shares) are hereby converted, share for share, into 1,400,000
shares of the Common Stock of the Corporation.
F. All of the issued and outstanding shares of the Common
Stock of Buffalo Niagara Electric Corporation (being 3,000,000
shares) are hereby converted, share for share, into 3,000,000
shares of the Common Stock of the Corporation.
G. All of the authorized but unissued shares of every class or
series of the constituent corporations are hereby converted into
1,419,011 shares of the authorized but unissued shares of the
Common Stock of the Corporation and 410,000 shares of the
authorized but unissued shares of the Preferred Stock of the
Corporation, subject to the issuance of such Preferred Stock in
series as herein provided.
H. Upon surrender for cancellation by the respective holders,
at such office or offices or such agency or agencies of the
Corporation as may from time to time be designated by the Board of
Directors for that purpose, of the certificates representing shares
of the Preferred Stock and Common Stock of Buffalo Niagara Electric
Corporation and of the Cumulative Preferred Stock and Common Stock
of Central New York Power Corporation and of the Cumulative
Preferred Stock and Common Stock of New York Power and Light
Corporation, duly endorsed in blank for transfer if required, such
holders shall respectively be entitled to receive a certificate or
certificates representing the share or shares of stock of the
Corporation to which each such holder is entitled as aforesaid.
60
The Board of Directors of the Corporation shall have the power
to prescribe reasonable regulations, with respect to dividends
payable from time to time on such shares of the Corporation as may
be represented (subsequent to the date of filing of this
Certificate of Consolidation in the Department of State) by
outstanding unexchanged stock certificates of the constituent
companies and for the temporary withholding of such dividends by
the Corporation or its fiscal and exchange agent (or dividend
payment agent) until such outstanding certificates shall be
presented for exchange for certificates of the Corporation to the
end that such dividends shall be paid at the time of such exchange
to the person or persons properly entitled thereto.
I. The conversion of shares of Buffalo Niagara Electric
Corporation, Central New York Power Corporation and New York Power
and Light Corporation into shares of the Corporation shall take
place upon and become effective by the filing of this Certificate
in the Department of State, without further action by the holders
of such shares or by any other person or persons, and upon such
filing the holders of record of the shares of said Buffalo Niagara
Electric Corporation, Central New York Power Corporation and New
York Power and Light Corporation shall become and be holders of
record, in the amounts herein provided for, of shares of the
Corporation.
IX. The Corporation is to be Central New York Power
Corporation, one of the constituent corporations, and not a new
corporation, and its name is hereby changed to Niagara Mohawk Power
Corporation. The certificate of incorporation of said surviving
constituent corporation shall be deemed amended to the extent
necessary to bring such certificate of incorporation into
conformity with the provisions of this Certificate of
Consolidation, but, except as amended by the provisions of this
Certificate of Consolidation, such certificate of incorporation
shall continue in full force and effect, and, as amended, shall be
binding upon all of the stockholders of the Corporation.
61
X. The Secretary of State of the State of New York is
designated as the agent of the Corporation upon whom process in any
action or proceeding against it may be served; and the address to
which the Secretary of State shall mail a copy of process in any
action or proceeding against the Corporation which may be served
upon him is No. 300 Erie Boulevard West, Syracuse, New York.
XI. The directors of the Corporation need not be stockholders
of the Corporation.
XII. Subject to the applicable provisions of the Public
Service Law, no contract or other transaction entered into by the
Corporation shall be affected by the fact that any director of the
Corporation is in any way interested in or connected with any party
to such contract or transaction or himself is a party to such
contract or transaction, provided that such contract or transaction
shall be approved by a majority of the directors present at the
meeting authorizing or confirming such contract or transaction,
which majority shall consist of directors not so interested or
connected. The fact that any director of the Corporation has such
an interest or connection with any contract or other transaction so
approved, shall not render him liable to account to the Corporation
for any profit realized by him or for any loss suffered by the
Corporation from or through any such contract or transaction. The
lack of such approval shall not in and of itself invalidate any
such contract or transaction or deprive the Corporation or any of
its directors of any right to proceed therewith insofar as
permitted by law.
XIII. The Corporation reserves the right, subject to
compliance with any applicable requirement of this Certificate, to
amend, alter, change or repeal any provision contained in this
Certificate in the manner now or hereafter permitted by statute,
and all rights granted to stockholders herein are granted subject
to this reservation.
IN WITNESS WHEREOF, the undersigned has made and subscribed
this Certificate in octuplicate this 4th day of January, 1950.
62
NIAGARA HUDSON POWER CORPORATION
By EARLE J. MACHOLD
President
Attest:
CHARLES A. TATTERSALL
Secretary
(CORPORATE SEAL)
STATE OF NEW YORK)
) ss.:
COUNTY OF NEW YORK)
On this 4th day of January, 1950, before me personally came
EARLE J. MACHOLD, to me personally known, who, being by me duly
sworn, did depose and say that he resides at 106 Wendell Terrace,
Syracuse, New York; that he is the President of Niagara Hudson
Power Corporation, the corporation described in and which
subscribed the foregoing Certificate of Consolidation; that he
knows the seal of the said Corporation; that the seal affixed to
such instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of such Corporation, and that he
signed his name thereto by like order.
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public, State of New York
No. 31-1158700
Qual in New York County Clk. and Reg
Term Expires March 30, 1951
(NOTARIAL SEAL)
63
Affidavit of Secretary
of
BUFFALO NIAGARA ELECTRIC CORPORATION
STATE OF NEW YORK )
COUNTY OF ERIE ) ss.:
WALTER S. SCHMIDT, being duly sworn, deposes and says: that he
is the Secretary of Buffalo Niagara Electric Corporation, one of
the constituent corporations named in the foregoing Certificate of
Consolidation; that the foregoing consolidation of Buffalo Niagara
Electric Corporation, New York Power and Light Corporation and
Central New York Power Corporation was subject to the approval of
the Securities and Exchange Commission and has been approved by
said Commission under the provisions of the Public Utility Holding
Company Act of 1935, and that Niagara Hudson Power Corporation, the
corporation which has executed the foregoing Certificate of
Consolidation, is the holder of record of all of the outstanding
shares of Buffalo Niagara Electric Corporation entitled to vote on
any consolidation pursuant to Section 86 of the Stock Corporation
Law which is subject to the order, approval or permission of, and
has been ordered, approved or permitted by, the Securities and
Exchange Commission under the provisions of the Public Utility
Holding Company Act of 1935.
WALTER S. SCHMIDT
Sworn to before me this
4th day of January, 1950.
GERTRUDE E. RUBERT
GERTRUDE E. RUBERT
NOTARY PUBLIC
In and for the Erie County, New York
Certificate filed in Niagara County, New York
My Commission expires Mar. 30, 1951
Reg. No. 665
(NOTARIAL SEAL)
64
Affidavit of Secretary
of
CENTRAL NEW YORK POWER CORPORATION
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
FREDERICK P. SMITH, being duly sworn, deposes and says: that he
is the Secretary of Central New York Power Corporation, one of the
constituent corporations named in the foregoing Certificate of
Consolidation; that the foregoing consolidation of Buffalo Niagara
Electric Corporation, New York Power and Light Corporation and
Central New York Power Corporation has been approved by the Federal
Securities and Exchange Commission under the provisions of the
Public Utility Holding Company Act of 1935, and that Niagara Hudson
Power Corporation, the corporation which has executed the foregoing
Certificate of Consolidation, is the holder of record of all of the
outstanding shares of Central New York Power Corporation entitled
to vote on any consolidation pursuant to Section 86 of the Stock
Corporation Law which has been ordered, approved or permitted by
the Federal Securities and Exchange Commission under the provisions
of the Public Utility Holding Company Act of 1935.
FREDERICK P. SMITH
Sworn to before me this
4th day of January, 1950.
CATHERINE E. AGAN
Catherine E. Agan, Notary Public in the
State of New York, Qualified in Onondaga
County, No. 34-002-4300
My Commission expires March 30, 1951
(NOTARIAL SEAL)
65
Affidavit of Secretary
of
NEW YORK POWER AND LIGHT CORPORATION
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
ALBERT N. WOODHEAD, being duly sworn, deposes and says: that he
is the Secretary of New York Power and Light Corporation, one of
the constituent corporations named in the foregoing Certificate of
Consolidation; that the foregoing consolidation of Buffalo Niagara
Electric Corporation, New York Power and Light Corporation and
Central New York Power Corporation has been approved by the Federal
Securities and Exchange Commission under the provisions of the
Public Utility Holding Company Act of 1935, and that Niagara Hudson
Power Corporation, the corporation which has executed the foregoing
Certificate of Consolidation, is the holder of record of all of the
outstanding shares of New York Power and Light Corporation entitled
to vote on any consolidation pursuant to Section 86 of the Stock
Corporation Law which has been ordered, approved or permitted by
the Federal Securities and Exchange Commission under the provisions
of the Public Utility Holding Company Act of 1935.
ALBERT N. WOODHEAD
Sworn to before me this
4th day of January, 1950.
MARY M. SHANAHAN
MARY M. SHANAHAN
Notary Public, State of New York
Qualified in Albany County
My Commission expires March 30, 1950
Certificate filed in Col., Cort., Dut.,
66
Essex, Fulton, Greene, Ham., Herk.,
Mad., Mont., Oneida, Onon., Otsego,
Putnam, Renss., Sar., Schen., Scho.,
Ulster, Warren & Wash. County
(NOTARIAL SEAL)
Affidavit of President
of
NIAGARA HUDSON POWER CORPORATION
pursuant to Section 26-a of the Stock Corporation Law
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
EARLE J. MACHOLD, being duly sworn, deposes and says:
1. That he is the President of Niagara Hudson Power
Corporation, the corporation which executed the foregoing
Certificate of Consolidation;
2. That provision for the making of the foregoing Certificate
of Consolidation and the filing thereof in the Department of State
of the State of New York is made in the Plan of Niagara Hudson
Power Corporation pursuant to Section 11(e) of the Public Utility
Holding Company Act of 1935 for the consolidation of its
subsidiaries, Buffalo Niagara Electric Corporation, Central New
York Power Corporation and New York Power and Light Corporation,
into a single electric and gas company, dated May 18, 1948
(hereinafter referred to as "the Plan");
3. That the Plan has been approved by order of the Securities
and Exchange Commission dated August 25, 1949, pursuant to Section
11(e) of the Public Utility Holding Company Act of 1935;
67
4. That the Plan has been approved and enforced, as provided
in the Public Utility Holding Company Act of 1935, by the decree
of a court of competent jurisdiction, namely the United States
District Court for the Northern District of New York, made and
dated November 4, 1949, in a proceeding entitled
"In the Matter of
Niagara Hudson Power Corporation
Buffalo Niagara Electric Corporation
Central New York Power Corporation
New York Power and Light Corporation
"A Proceeding to enforce Plans pursuant to
Sections 11(e) and 18(f) of the Public Utility
Holding Company Act of 1935
"Civil Action No. 3476";
5. That the foregoing decree of the United States District
Court for the Northern District of New York has ceased to be
subject to appeal or review;
6. That the form and provisions of the foregoing Certificate of
Consolidation have been approved by the said United States District
Court for the Northern District of New York, which made the
foregoing decree;
7. That the filing of the foregoing Certificate of
Consolidation has been authorized by the said United States
District Court for the Northern District of New York;
8. That notice of the changes provided for in the foregoing
Certificate of Consolidation was given in the proceedings before
the Securities and Exchange Commission upon the Plan, pursuant to
68
Section 11(e) of the Public Utility Holding Company Act of 1935,
and in the proceedings upon the Plan before the United States
District Court for the Northern District of New York, pursuant to
Sections 11(e) and 18(f) of the Public Utility Holding Company Act
of 1935, in each instance not less than ten days preceding the
making of the foregoing Certificate of Consolidation to the holders
of record of all the outstanding shares or other securities of each
of the constituent corporations entitled to vote or materially
affected by the Plan whose names and addresses are known to any of
the constituent corporations, including those who but for the
provisions of Section 26-a of the Stock Corporation Law, would be
entitled to vote, under the laws of the State of New York or the
respective certificates of incorporation of each of the constituent
corporations, with relation to such changes, which notice was given
to said security holders of each of the constituent corporations in
the manner directed by the Securities and Exchange Commission and
also in the manner directed by the said United States District
Court for the Northern District of New York.
EARLE J. MACHOLD
Sworn to before me this
4th day of January, 1950.
PHYLLIS FANNING (NOTARIAL SEAL)
PHYLLIS FANNING
Notary Public State of New York
No. 31-1158700
Qual in New York County Clk. and Reg.
Term Expires March 30, 1951
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., January 4, 1950
69
CASE 12733--Petition of Buffalo Niagara Electric Corporation,
Central New York Power Corporation and New York Power and Light
Corporation for (1) approval of consolidation of the said
corporations, and (2) authority to the issuance of certain
securities by the Consolidated Corporation. Petition of Niagara
Hudson Power Corporation for authority to acquire and hold certain
of the capital stock to be issued by the Consolidated Corporation.
* * * * * *
The Public Service Commission hereby approves the consolidation
of New York Power and Light Corporation and Buffalo Niagara
Electric
Corporation and Central New York Power Corporation into Central New
York Power Corporation which is to survive the consolidation and be
named Niagara Mohawk Power Corporation, which consolidation is
evidenced by this certificate of consolidation made Pursuant to
Sections 26-a and 86 of the Stock Corporation Law and to
Subdivision 4 of Section 11 of the Transportation Corporations Law,
and executed on January 4, 1950 by the President of Niagara Hudson
Power Corporation, the Secretary of Buffalo Niagara Electric
Corporation, the Secretary of Central New York Power Corporation,
the Secretary of New York Power and Light Corporation,--in
accordance with the order of said Public Service Commission dated
September 29, 1948, as amended by orders of September 20, 1949 and
December 13, 1949.
By the Commission
MURRAY G. TANNER
(SEAL) Secretary
STATE OF NEW YORK )
) ss.:
DEPARTMENT OF STATE)
I Certify That I have compared the preceding copy with the
original Certificate of Consolidation of NEW YORK POWER AND LIGHT
70
CORPORATION and BUFFALO NIAGARA ELECTRIC CORPORATION and CENTRAL
NEW YORK POWER CORPORATION into CENTRAL NEW YORK POWER CORPORATION
pursuant to Sections 26-a and 86 of the Stock Corporation Law and
to Subdivision 4 of Section 11 of the Transportation Corporations
Law under the Corporate Name of NIAGARA MOHAWK POWER CORPORATION,
filed in this department on the 5th day of January, 1950, and that
such copy is a correct transcript therefrom and of the whole of
such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this fifth day of January, one
thousand nine hundred and fifty.
(SEAL) RUTH M. MINER
Deputy Secretary of State
CERTIFICATE OF MERGER
of
THE NIAGARA FALLS POWER COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
__________
Pursuant to Section 85 of the Stock Corporation Law
__________
Dated: October 16, 1950
71
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed Oct 19 1950
Tax $ None
Filing Fee $25
THOMAS J. CURRAN
Secretary of State
By A. D. BORDEN
CERTIFICATE OF MERGER
of
THE NIAGARA FALLS POWER COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
The undersigned, NIAGARA MOHAWK POWER CORPORATION, pursuant to
Section 85 of the Stock Corporation Law, hereby certifies as
follows:
1. NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as the "Corporation") is a stock corporation duly
organized and existing under the laws of the State of New York.
72
2. The Corporation owns all of the issued and outstanding capital
stock of The Niagara Falls Power Company, which is a stock
corporation organized under the laws of the State of New York and
is authorized to engage and is engaged in business similar to the
business in which the Corporation is authorized to engage and is
engaged.
3. At a meeting of the Board of Directors of the Corporation,
duly called and held on the 2nd day of May, 1950, the following
resolutions were duly adopted:
WHEREAS, The Niagara Falls Power Company is a stock corporation
organized under the laws of the State of New York and is authorized
to engage and is engaged in business similar to the business in
which this Corporation is authorized to engage and is engaged; and
WHEREAS, this Corporation owns all of the issued and
outstanding capital stock of The Niagara Falls Power Company; and
WHEREAS, it is deemed expedient that this Corporation merge The
Niagara Falls Power Company into itself and thereby become and be
possessed of all of the assets, property, rights, privileges and
franchises of said The Niagara Falls Power Company.
NOW, THEREFORE, BE IT RESOLVED, that this Corporation merge The
Niagara Falls Power Company and assume all of its obligations,
subject to obtaining approval of the Public Service Commission of
the State of New York as provided under subdivision 5 of Section 85
of the Stock Corporation Law; and be it further
RESOLVED, that the President or a Vice President and the
Secretary or the Treasurer of this Corporation be and they hereby
are authorized, empowered and directed to execute in the name and
under the seal of this Corporation a Certificate of Merger of said
The Niagara Falls Power Company with this Corporation, as provided
in the foregoing resolution, and to file the same in the Department
of State of the State of New York; and be it further
73
RESOLVED, that the said officers of this Corporation be and
they hereby are authorized, empowered and directed to do all such
other acts and things and to execute and file such other documents
as may be necessary, desirable or appropriate to effect the merger
of said The Niagara Falls Power Company with this Corporation, as
provided by the foregoing resolutions.
IN WITNESS WHEREOF, Niagara Mohawk Power Corporation has caused
this Certificate to be executed in its name, signed by Earle J.
Machold, its President, and Charles A. Tattersall, its Secretary
and its corporate seal to be hereunto affixed this 16th day of
October, 1950.
NIAGARA MOHAWK POWER CORPORATION
By EARLE J. MACHOLD
President
(SEAL)
By C. A. TATTERSALL
Secretary
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., October 19, 1950
CASE 14825--Petition of Niagara Mohawk Power Corporation for
approval of the merger of The Niagara Falls Power Company.
__________
The Public Service Commission hereby consents to and approves
this Certificate of Merger of The Niagara Falls Power Company with
74
Niagara Mohawk Power Corporation, pursuant to Section 85 of the
Stock Corporation Law, executed October 16, 1950, in accordance
with the order of this Commission dated October 17, 1950.
By the Commission,
(SEAL)MURRAY G. TANNER /s
Secretary
STATE OF NEW YORK )
) ss.: 14603
DEPARTMENT OF STATE)
I Certify That I have compared the preceding copy with the
original Certificate of Merger of THE NIAGARA FALLS POWER COMPANY
with NIAGARA MOHAWK POWER CORPORATION filed in this department on
the 19th day of October, 1950, and that such copy is a correct
transcript therefrom and of the whole of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this second day of November, one
thousand nine hundred and fifty.
SIDNEY B. GORDON
Deputy Secretary of State
(SEAL)
CERTIFICATE OF MERGER
OF
FRONTIER CORPORATION
75
WITH
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
Dated: May 1, 1951
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed May 2, 1951
Tax $ None
Filing Fee $25
THOMAS J. CURRAN
Secretary of State
By B. HORAN
CERTIFICATE OF MERGER
of
FRONTIER CORPORATION
with
76
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
__________
The undersigned, Niagara Mohawk Power Corporation, pursuant to
Section 85 of the Stock Corporation Law, hereby certifies as
follows:
1. Niagara Mohawk Power Corporation (hereinafter sometimes
referred to as the "Corporation") is a stock corporation duly
organized and existing under the laws of the State of New York.
2. The Corporation owns all of the issued and outstanding
capital stock of Frontier Corporation, which is a stock corporation
organized under the laws of the State of New York and authorized to
engage in business incidental to the business which the Corporation
is authorized to engage in.
3. At a meeting of the Board of Directors of the Corporation,
duly called and held on the 12th day of December, 1950, the
following resolutions were duly adopted:
WHEREAS, Frontier Corporation is a stock corporation organized
under the laws of the State of New York and is authorized to engage
and is engaged in business similar or incidental to the business in
which this Corporation is authorized to engage and is engaged; and
WHEREAS, this Corporation owns all of the issued and
outstanding capital stock of Frontier Corporation; and WHEREAS, it
is deemed expedient that this Corporation merge Frontier
Corporation into itself and thereby become and be possessed of all
of the assets, property, rights, privileges and franchises of said
Frontier Corporation,
NOW, THEREFORE, BE IT
77
RESOLVED, that this Corporation merge Frontier Corporation and
assume all of its obligations subject to obtaining approval of the
Public Service Commission of the State of New York as provided
under subdivision 5 of Section 85 of the Stock Corporation Law; and
be it further
RESOLVED, that the President or a Vice President and the
Secretary or the Treasurer of this Corporation be and they hereby
are authorized, empowered and directed to execute in the name and
under the seal of this Corporation a Certificate of Merger of said
Frontier Corporation with this Corporation as provided in the
foregoing resolution and to file the same in the Department of
State of the State of New York; and be it further
RESOLVED, that the said officers of this Corporation be and
they hereby are authorized, empowered and directed to do all such
other acts and things and to execute and file such other documents
as may be necessary, desirable or appropriate to effect the merger
of said Frontier Corporation with this Corporation as provided by
the foregoing resolutions.
IN WITNESS WHEREOF, Niagara Mohawk Power Corporation has caused
this Certificate to be executed in its name, signed by Earle J.
Machold, its President, and Charles A. Tattersall, its Secretary,
and its corporate seal to be hereunto affixed this 1st day of May,
1951.
NIAGARA MOHAWK POWER CORPORATION
By EARL J. MACHOLD (Signed)
President
(SEAL)
By CHARLES A. TATTERSALL (Signed)
Secretary
STATE OF NEW YORK )
) ss.:
78
COUNTY OF ONONDAGA )
On this 1st day of May, 1951, before me personally came EARLE
J. MACHOLD and CHARLES A. TATTERSALL, to me known, who, being by
me duly sworn, did depose and say and each for himself deposes and
says that he, the said Earle J. Machold, resides in the City of
Syracuse, State of New York, and is the President of Niagara Mohawk
Power Corporation, the corporation described in and which executed
the foregoing instrument; that he, the said Charles A. Tattersall,
resides in the City of Syracuse, State of New York, and is the
Secretary of said corporation; that he, the said Earle J. Machold,
and he, the said Charles A. Tattersall, both know the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that they signed their names
thereto by like order.
PHYLLIS FANNING (Signed)
Notary Public
(SEAL)
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1156700
Certificate Filed in New York County
No. 31-1158700
My Commission Expires March 30, 1953
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N. Y., May 2, 1951
79
CASE 15212--Petition of Niagara Mohawk Power Corporation for
approval of the merger of Frontier Corporation into Niagara Mohawk
Power Corporation.
__________
The Public Service Commission hereby consents to and approves
this Certificate of Merger by Niagara Mohawk Power Corporation of
Frontier Corporation, pursuant to Section 85 of the Stock
Corporation Law, which merger is evidenced by this Certificate of
Merger executed by Niagara Mohawk Power Corporation May 1, 1951, in
accordance with the order of this Commission dated February 27,
1951, as amended by order dated March 20, 1951.
By the Commission,
ROGER M. HUBER (Signed)
Acting Secretary
(SEAL)
fm
6735
STATE OF NEW YORK )
) ss.:
DEPARTMENT OF STATE )
I CERTIFY That I have compared the preceding copy with the
original Certificate of Merger of Frontier Corporation with Niagara
Mohawk Power Corporation filed in this department on the 2nd day of
May, 1951, and that such copy is a correct transcript therefrom and
of the whole of such original.
79
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this second day of May, one thousand
nine hundred and fifty-one.
(SEAL)
SIDNEY B. GORDON (Signed)
Deputy Secretary of State
CERTIFICATE OF MERGER
of
THE OSWEGO CANAL COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
Dated: August 21, 1952
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED AUG. 22, 1952
TAX $ None
81
FILING FEE $25
THOMAS J. CURRAN
Secretary of State
BY B. HORAN
83
CERTIFICATE OF MERGER
of
THE OSWEGO CANAL COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
__________
The undersigned, Niagara Mohawk Power Corporation, pursuant to
Section 85 of the Stock Corporation Law, hereby certifies as
follows:
1. Niagara Mohawk Power Corporation (hereinafter sometimes
referred to as the "Corporation"), is a stock corporation duly
organized and existing under the laws of the State of New York.
2. The Corporation owns all of the issued and outstanding
capital stock of The Oswego Canal Company, which is a stock
corporation organized under the provisions of Chapter 241 of the
Laws of 1823 as amended by Chapter 180 of the Laws of 1952 of the
82
State of New York and authorized to engage in business incidental
to the business which the Corporation is authorized to engage in.
3. At a meeting of the Board of Directors of the Corporation
duly called and held on the 6th day of May, 1952, the following
resolutions were duly adopted:
WHEREAS, The Oswego Canal Company is a stock corporation
organized under Chapter 241 of the Laws of 1823 as amended by
Chapter 180 of the Laws of 1952 of the State of New York and is
authorized to engage and is engaged in business similar or
incidental to the business in which this Corporation is authorized
to engage and is engaged; and
WHEREAS, this Corporation owns all of the issued and
outstanding
capital stock of The Oswego Canal Company; and WHEREAS, it is
deemed expedient that this Corporation merge The Oswego Canal
Company into itself and thereby become and be possessed of all the
assets, property, rights, privileges and franchises of said The
Oswego Canal Company,
NOW, THEREFORE, BE IT
RESOLVED, that this Corporation merge The Oswego Canal Company
and assume all of its obligations subject to obtaining approval of
the Public Service Commission of the State of New York as provided
under Subdivision 5 of Section 85 of the Stock Corporation Law; and
be it further
RESOLVED, that the President or a Vice President and the
Secretary or the Treasurer of this Corporation be and they hereby
are authorized, empowered and directed to execute in the name and
under the seal of this Corporation a Certificate of Merger of said
The Oswego Canal Company with this Corporation as provided in the
foregoing resolution and to file the same in the Department of
State of the State of New York; and be it further
83
RESOLVED, that the said officers of this Corporation be and
they hereby are authorized, empowered and directed to do all such
other acts and things and to execute and file such other documents
as may be necessary, desirable or appropriate to effect the merger
of said The Oswego Canal Company with this Corporation provided by
the foregoing resolutions.
IN WITNESS WHEREOF, Niagara Mohawk Power Corporation has caused
this Certificate to be executed in its name, signed by Earle J.
Machold, its President, and Charles A. Tattersall, its Secretary,
and its corporate seal to be hereunto affixed this 21st day of
August, 1952.
NIAGARA MOHAWK POWER CORPORATION
By EARLE J. MACHOLD
President
(CORPORATE SEAL)
By CHARLES A. TATTERSALL
Secretary
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA )
On this 21st day of August, 1952, before me personally came
EARLE J. MACHOLD and CHARLES A. TATTERSALL, to me known, who,
being by me duly sworn, did depose and say and each for himself
deposes and says that he, the said Earle J. Machold, resides in the
City of Syracuse, State of New York, and is the President of
Niagara Mohawk Power Corporation, the corporation described in and
which executed the foregoing instrument; that he, the said Charles
A. Tattersall, resides in the City of Syracuse, State of New York,
and is the
84
Secretary of said corporation; that he, the said Earle J. Machold,
and he, the said Charles A. Tattersall, both know the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that they signed their names
thereto by like order.
PHYLLIS FANNING
Notary Public
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1156700
Certificate Filed in New York County
No. 31-1158700
My Commission Expires March 30,1953
(SEAL)
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N. Y., August 22, 1952
CASE 15807
Petition of Niagara Mohawk Power Corporation for approval of
the merger of The Oswego Canal Company.
__________
The Public Service Commission hereby consents to and approves
this merger by Niagara Mohawk Power Corporation of The Oswego Canal
Company, Pursuant to Section 85 of the Stock Corporation Law, which
merger is evidenced by this Certificate of Merger executed August
21, 1952, in accordance with the order of this Commission dated
June 16, 1952, as amended by order dated July 8, l952.
85
By the Commission,
MURRAY G. TANNER
Secretary
(SEAL)
STATE OF NEW YORK )
) ss.:
11255
DEPARTMENT OF STATE )
I Certify That I have compared the preceding copy with the
original Certificate of Merger of The Oswego Canal Company with
Niagara Mohawk Power Corporation, filed in this department on the
22nd day of August, 1952, and that such copy is a correct
transcript therefrom and of the whole of such original.
WITNESS my hand and the official seal of the Department of State
at the City of Albany, this twenty-fifth day of August, one
thousand nine hundred and fifty-two.
SIDNEY B. GORDON
(SEAL) Deputy Secretary of State
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
86
__________
Pursuant to Section 36 of the Stock Corporation Law
__________
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED AUG. 22, 1952
TAX $75,000
FILING FEE $25
THOMAS J. CURRAN
Secretary of State
BY B. HORAN
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
87
__________
Pursuant to Section 36 of the Stock Corporation Law
__________
NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation") by its President thereunto duly
authorized DOES HEREBY CERTIFY:
I. The name of the Corporation is "Niagara Mohawk Power
Corporation".
The name under which the Corporation was originally
incorporated was "Niagara Hudson Public Service Corporation".
II. The Certificate of Consolidation forming the Corporation
under the name of "Niagara Hudson Public Service Corporation") was
filed in the Department of State of the State of New York on July
31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was
filed in the Department of State of the State of New York on
September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State of the
State of New York on January 5, 1950. Said Certificate of
Consolidation is hereinafter sometimes referred to as the "1950
Certificate of Consolidation".
Pursuant to Section 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State of
the State of New York on January 5, 1950 to effect certain changes
authorized in subdivision two of Section 35 of the Stock
Corporation Law. Said Certificate of Amendment is hereinafter
sometimes
88
referred to as the "1950 Certificate of Amendment".
III. The Certificate of Incorporation of the Corporation is
hereby amended to effect the following changes authorized in
subdivision two of Section 35 of the Stock Corporation Law:
(1) To authorize new shares by increasing the authorized
shares without par value from 13,023,289 to 14,523,289 shares;
(2) To amend the provision authorized by Section 12 of the
Stock Corporation Law with respect to the dollar amount of the
minimum capital of the Corporation.
IV. Parts A, B and C of Article IV of the above mentioned 1950
Certificate of Consolidation, as amended by the 1950 Certificate of
Amendment, setting forth the number of authorized shares, the
statements respecting capital and the number of shares of each
class are hereby amended to read as follows:
"IV.A. The total number of shares which the Corporation may
have is 15,723,289, of which 1,200,000 are to have a par value of
$100 each, and 14,523,289 are to be without par value.
"B. The capital of the Corporation shall be at least equal to
the sum of the aggregate par value of all issued shares having par
value plus the aggregate amount of consideration received by the
Corporation for the issuance of shares without par value, plus such
amounts as, from time to time, by resolution of the Board of
Directors, may be transferred thereto.
"Subject to the laws creating and defining the duties of the
Public Service Commission, authorized but unissued shares of the
Corporation without par value may be issued from time to time for
such consideration as may be fixed by the Board of Directors of the
Corporation.
"The capital of the Corporation shall be not less than
$198,452,890.
89
"C. The shares of the Corporation are to be classified as
follows:
1,200,000 shares are to be Preferred Stock with a par value of
$100 each; 1,928,627 shares are to be Class A Stock without par
value, and 12,594,662 shares are to be Common Stock without par
value."
IN WITNESS WHEREOF, the undersigned has made and subscribed
this Certificate of Amendment this 19th day of August, 1952.
EARLE J. MACHOLD
EARLE J. MACHOLD
President of Niagara Mohawk Power Corporation
Attest:
CHARLES A. TATTERSALL
CHARLES A. TATTERSALL
Secretary
(CORPORATE SEAL)
Affidavit of
Officers of the Corporation
Pursuant to Section 37 of the Stock Corporation Law
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
90
Earle J. Machold and Charles A. Tattersall, being duly sworn,
depose and say, and each for himself deposes and says, that he,
Earle J. Machold, is the President of the Corporation, and he,
Charles A. Tattersall, is the Secretary of said corporation; that
they have been authorized to execute and file the foregoing
Certificate by the votes cast in person or by proxy of the holders
of record of a majority of the outstanding shares entitled to vote
at the stockholders' meeting at which such votes were cast with
relation to the proceedings provided for in the foregoing
Certificate; that neither the Certificate of Incorporation nor any
other Certificate filed pursuant to law requires a larger
proportion of votes; that such votes were cast at a stockholders'
meeting held upon notice pursuant to Section 45 of the Stock
Corporation Law and that such meeting was duly called and held on
the 6th day of May, 1952.
EARLE J. MACHOLD
President
CHARLES A. TATTERSALL
Secretary
Subscribed and sworn to before
me this 19th day of Aug., 1952.
PHYLLIS FANNING
Notary Public
PHYLLIS FANNING
Notary Public in the State of New York
91
Qualified in Onon. Co. No. 34-1156700
Certificate Filed in New York County
No. 31-1158700
My Commission Expires March 30, 1953
(SEAL)
Affidavit of
Officers of the Corporation
Pursuant to Section 37 of the Stock Corporation Law
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
Earle J. Machold and James H. Morrell, being duly sworn, depose
and say, and each for himself deposes and says, that he, Earle J.
Machold, is the President, and he, James H. Morrell, is the
Treasurer of Niagara Mohawk Power Corporation, and that by the
foregoing Certificate of Amendment the number of additional shares
not resulting from a change of shares which the Corporation is
thereby authorized to issue is 1,500,000 shares of Common Stock
without par value and that no additional shares with par value have
thereby been authorized; that no shares have thereby been changed
as provided in subparagraph (5) of paragraph (C) of subdivision two
of Section 35 of the Stock Corporation Law; and that the par value
of any shares with par value has not been increased.
EARLE J. MACHOLD
President
92
JAMES H. MORRELL
Treasurer
Subscribed and sworn to before
me this 19th day of Aug., 1952.
PHYLLIS FANNING
Notary Public
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1156700
Certificate Filed in New York County
No. 31-1158700
My Commission Expires March 30, 1953
(SEAL)
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On this 19th day of August, 1952, before me personally came
Earle J. Machold, to me known to be the person described in and who
executed the foregoing Certificate of Amendment on behalf of
Niagara Mohawk Power Corporation, and he thereupon duly
acknowledged to me that he executed the same.
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1156700
93
Certificate Filed in New York County (SEAL)
No. 31-1158700
My Commission Expires March 3, 1953
STATE OF NEW YORK )
COUNTY OF ALBANY ) ss.:
On this 20th day of August, 1952, before me personally came
Charles A. Tattersall, to me known to be the person described in
and who executed the foregoing Certificate of Amendment on behalf
of Niagara Mohawk Power Corporation, and he thereupon duly
acknowledged to me that he executed the same.
MARY M. SHANAHAN
MARY M. SHANAHAN
Notary Public State of New York
Qualified in Albany County
My Commission expires March 30,
1954. Certificate filed in Col., Cort.,
Dut., Essex, Fulton, Greene, Ham.,
Herk., Mad., Mont., Oneida, Onon.,
Otsego, Putnam, Renss., Sar.,
Schen., Scho., Ulster, Warren and
Wash. County
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N. Y., August 20, 1952
CASE 15890
Petition of Niagara Mohawk Power Corporation for approval of an
increase in its authorized capital stock and a change in the
minimum capital of the corporation.
94
__________
The Public Service Commission hereby consents to and approves
this Certificate of Amendment of Certificate of Incorporation of
Niagara Mohawk Power Corporation, Pursuant to Section Thirty-Six of
the Stock Corporation Law, executed August 19, 1952, in accordance
with the order of this Commission dated August 11, 1952.
By the Commission
MURRAY G. TANNER
Secretary
(SEAL)
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
11226
I Certify That I have compared the preceding copy with the
original Certificate of Amendment of Certificate of Incorporation
of
"Niagara Mohawk Power Corporation",
filed in this department on the 22nd day of August, 1952, and that
such copy is a correct transcript therefrom and of the whole of
such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this twenty-second day of August, one
thousand nine hundred and fifty-two.
SIDNEY B. GORDON
Deputy Secretary of State
(SEAL)
97
CERTIFICATE OF MERGER
of
CORINTH ELECTRIC LIGHT AND POWER COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
__________
Pursuant to Section 85 of the Stock Corporation Law
__________
Dated July 2, 1953
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED JULY 8, 1953
TAX $ None
FILING FEE $25
THOMAS J. CURRAN
Secretary of State
By A. D. BORDEN
96
CERTIFICATE OF MERGER
of
CORINTH ELECTRIC LIGHT AND POWER COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
The undersigned, NIAGARA MOHAWK POWER CORPORATION, pursuant to
Section 85 of the Stock Corporation Law, hereby certifies as
follows:
1. NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation"), is a stock corporation duly
organized and existing under the laws of the State of New York.
2. The Corporation owns all of the issued and outstanding
capital stock of Corinth Electric Light and Power Company, which is
a stock corporation organized under the laws of the State of New
York and is authorized to engage and is engaged in business similar
or incidental to the business in which the Corporation is
authorized to engage and is engaged.
3. At a meeting of the Board of Directors of the Corporation
duly called and held on the 18th day of November, 1952, the
following resolutions were duly adopted:
WHEREAS, Corinth Electric Light and Power Company is a stock
corporation organized under the laws of the State of New York and
is authorized to engage and is engaged in business similar or
incidental to the business in which this Corporation is authorized
to engage and is engaged; and
97
WHEREAS, this Corporation has entered into a valid and
subsisting agreement for the acquisition by this Corporation of
all of the outstanding stock of Corinth Electric Light and Power
Company; and
WHEREAS, it is deemed expedient that this Corporation merge
Corinth Electric Light and Power Company into itself and thereby
become and be possessed of all of the assets, property, rights,
privileges and franchises of said Corinth Electric Light and Power
Company;
NOW, THEREFORE, BE IT RESOLVED, that the provisions of these
resolutions shall be and become effective immediately upon the
acquisition by this Corporation, as owner, of all of the
outstanding stock of Corinth Electric Light and Power Company; and
be it further
RESOLVED, that this Corporation merge Corinth Electric Light
and Power Company and assume all of its obligations subject to
obtaining approval of the Public Service Commission of the State of
New York, as provided in subdivision 5 of Section 85 of the Stock
Corporation Law; and be it further
RESOLVED, that the President or a Vice President and the
Secretary or the Treasurer of this Corporation be and they hereby
are authorized, empowered and directed to execute in the name and
under the seal of this Corporation a Certificate of Merger of said
Corinth Electric Light and Power Company with this Corporation as
provided in the foregoing resolution and to file the same in the
Department of State of the State of New York; and be it further
RESOLVED, that the said officers of this Corporation be and
they hereby are authorized, empowered and directed to do all such
other acts and things and to execute and file such other documents
as may be necessary, desirable or appropriate to effect the merger
of said Corinth Electric Light and Power Company with this
Corporation provided by the foregoing resolutions.
98
IN WITNESS WHEREOF, NIAGARA MOHAWK POWER CORPORATION has caused
this Certificate to be executed in its name, signed by Earle J.
Machold, its President, and Charles A. Tattersall, its Secretary,
and its corporate seal to be hereunto affixed this 2nd day of July,
1953.
NIAGARA MOHAWK POWER CORPORATION
By EARLE J. MACHOLD
President
By CHARLES A. TATTERSALL
Secretary
(SEAL)
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On this 2nd day of July, 1953, before me personally came EARLE
J. MACHOLD and CHARLES A. TATTERSALL, to me known, who, being by
me duly sworn, did depose and say and each for himself deposes and
says that he, the said Earle J. Machold, resides in the City of
Syracuse, State of New York, and is the President of Niagara Mohawk
Power Corporation, the corporation described in and which executed
the foregoing instrument; that he, the said Charles A. Tattersall,
resides in the Town of Easton, State of Connecticut, and is the
Secretary of said corporation; that he, the said Earle J. Machold,
and he, the said Charles A. Tattersall, both know the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that they signed their names
thereto by like order.
99
By PHYLLIS FANNING
Notary Public
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1158700
(SEAL) Certificate Filed in New York County
My Commission Expires March 30, 1955
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., July 7, 1953
CASE 15974
Petition of Niagara Mohawk Power Corporation for authority to
acquire and hold all of the capital stock of Corinth Electric Light
and Power Company and to merge the said company.
__________
The Public Service Commission hereby consents to and approves
this merger by Niagara Mohawk Power Corporation of Corinth Electric
Light and Power Company, pursuant to Section 85 of the Stock
Corporation Law, which merger is evidenced by this Certificate of
Merger, executed by Niagara Mohawk Power Corporation July 2, 1953,
in accordance with the order of said Public Service Commission
dated July 7, 1953.
By the Commission
ALTON G. MARSHALL
Secretary
(SEAL)
100
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
I CERTIFY That I have compared the preceding copy with the
original Certificate of Merger of
Corinth Electric Light and Power Company
with
Niagara Mohawk Power Corporation
filed in this department on the 8th day of July, 1953, and that
such copy is a correct transcript therefrom and of the whole of
such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this eighth day of July, one thousand
nine hundred and fifty-three.
SIDNEY B. GORDON
Deputy Secretary of State
(SEAL)
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 11 of the Stock Corporation Law
101
Dated: May 4, 1954
STATE OF NEW YORK
DEPARTMENT OF STATE
Filed May 5, 1954
Tax $ None
Filing Fee $25
THOMAS J. CURRAN
Secretary of State
By B. HORAN
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
__________
Pursuant to Section 11 of the Stock Corporation Law
__________
NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation") by its President and Assistant
Secretary thereunto duly authorized DOES HEREBY CERTIFY:
102
I. The name of the Corporation is "Niagara Mohawk Power
Corporation".
The name under which the Corporation was originally
incorporated was "Niagara Hudson Public Service Corporation".
II. The Certificate of Consolidation forming the Corporation
(under the name of "Niagara Hudson Public Service Corporation") was
filed in the Department of State of the State of New York on July
31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was filed
in the Department of State of the State of New York on September
15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State of the
State of New York on January 5, 1950. Said Certificate of
Consolidation is hereinafter sometimes referred to as the "1950
Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State of
the State of New York on January 5, 1950 to effect certain changes
authorized in subdivision 2 of Section 35 of the Stock Corporation
Law. Said Certificate of Amendment is hereinafter sometimes
referred to as the "1950 Certificate of Amendment".
A further Certificate of Amendment pursuant to Section 36 of
the Stock Corporation Law was filed in the Department of State of
the State of New York on August 22, 1952 to effect an increase of
authorized shares without par value and to amend the statement
respecting capital of the Corporation.
III. The Certificate of incorporation of the Corporation, as
103
amended and supplemented by any certificate filed pursuant to law,
is hereby amended by the addition of the following provisions
stating the designations, preferences, privileges and voting
powers, and the restrictions or qualifications of a series of
Preferred Stock, to consist of 210,000 shares of the authorized
1,200,000 shares of Preferred Stock of the Corporation, as fixed by
the Board of Directors of the Corporation before the issuance of
such series, such provisions so added to be designated as paragraph
(4A) (of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 4.10%
Series
(4A) The designation, preferences, privileges and voting
powers of the 210,000 shares of the Preferred Stock, 4.10% Series,
and the restrictions or qualifications thereof (insofar as they
differ from or supplement the provisions which are applicable to
all shares of the Preferred Stock irrespective of series), are as
follows:
(A) The series shall be designated as Preferred Stock, 4.10%
Series;
(B) The dividend rate thereof shall be four and one-tenth
percent (4.10%) per annum. The dividends on the shares of the
Preferred Stock, 4.10% Series shall be cumulative from May 13,
1954;
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment, the Preferred Stock, 4.10%
Series shall have no voting rights whatsoever and is specifically
excluded from the right to vote in a proceeding for mortgaging the
property and franchises of the Corporation pursuant to Section 16
of the Stock Corporation Law, for authorizing any guaranty pursuant
to Section 19 of said Law, for sale of the franchises and property
of the 104
Corporation pursuant to Section 20 of said Law, for consolidation
pursuant to Section 86 of said Law, for voluntary dissolution
pursuant to Section 105 of said Law or for change of name pursuant
to the General Corporation Law or pursuant to Section 36 of the
Stock Corporation Law;
(D) The sum per share payable upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $104.50 per
share through April 30, 1959; $103.25 per share thereafter through
April 30, 1964; and $102 per share thereafter, in each case plus an
amount equal to the dividends accrued and unpaid on such share,
whether or not earned or declared;
(E) The sum per share payable upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 4.10% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $104.50 per share through April 30, 1959;
$103.25 per share thereafter through April 30, 1964; and $102 per
share thereafter, in each case plus an amount equal to the
dividends accrued and unpaid thereon to the date fixed for
redemption, whether or not earned or declared;
(G) The shares of the Preferred Stock, 4.10% Series shall not
be convertible into or exchangeable for other securities of the
Corporation; and
(H) There shall be no sinking fund with respect to the shares
of the Preferred Stock, 4.10% Series.
IN WITNESS WHEREOF, the undersigned have made and subscribed
this Certificate in triplicate this 4th day of May, 1954.
EARLE J. MACHOLD
President
105
JOHN G. BENACK
Assistant Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On this 4th day of May, 1954, before me personally came EARLE
J. MACHOLD and JOHN G. BENACK, to me known and known to me to be
the persons described in and who executed the foregoing
certificate, and they thereupon severally duly acknowledged to me
that they executed the same.
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1158700
Certificate Filed in New York County
My Commission Expires March 30,1955
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
EARLE J. MACHOLD and JOHN G. BENACK, being duly sworn, depose
and say, and each for himself deposes and says, that he, Earle J.
Machold, is the President of Niagara Mohawk Power Corporation, and
he, John G. Benack, is an Assistant Secretary thereof; that they
were duly authorized by the Board of Directors of Niagara Mohawk
Power Corporation to execute and file the foregoing Certificate,
and that the designations, preferences, privileges and voting
powers of the series of Preferred Stock described therein, and the
restrictions or qualifications thereof, were duly authorized by the
Board of Directors of Niagara Mohawk Power Corporation.
EARLE J. MACHOLD
EARLE J. MACHOLD
106
JOHN G. BENACK
JOHN G. BENACK
Subscribed and sworn to before me
this 4th day of May, 1954.
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1158700
Certificate Filed in New York County
My Commission Expires March 30, 1955
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
I Certify That I have compared the preceding copy with the
original certificate of NIAGARA MOHAWK POWER CORPORATION, pursuant
to Section 11 of the Stock Corporation Law, filed in this
department on the 5th day of May, 1954, and that such copy is a
correct transcript therefrom and of the whole of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this fifth day of May, one thousand
nine hundred and fifty-four.
(SEAL)
SIDNEY B. GORDON
Deputy Secretary of State
107
CERTIFICATE OF MERGER
of
WOODVILLE ELECTRIC LIGHT AND POWER COMPANY INC.
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
Dated: November 1, 1956
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED NOV 1, 1956
TAX $ None
FILING FEE $25
CARMINE G. DESAPIO
Secretary of State
By B. HORAN
108
CERTIFICATE OF MERGER
of
WOODVILLE ELECTRIC LIGHT AND POWER COMPANY INC.
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
__________
The undersigned, NIAGARA MOHAWK POWER CORPORATION, pursuant to
Section 85 of the Stock Corporation Law, hereby certifies as
follows:
1. NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation"), is a stock corporation duly
organized and existing under the laws of the State of New York.
2. The Corporation owns all of the issued and outstanding
capital stock of Woodville Electric Light and Power Company, Inc.,
which is a stock corporation organized under the laws of the State
of New York and is authorized to engage and is engaged in business
similar or incidental to the business in which the Corporation is
authorized to engage and is engaged.
3. At a meeting of the Board of Directors of the Corporation
duly called and held on the 19th day of June, 1956, the following
resolutions were duly adopted:
WHEREAS, Woodville Electric Light and Power Company Inc. is a
stock corporation organized under the laws of the State of New York
and is authorized to engage and is engaged in business similar or
incidental to the business in which this Corporation is authorized
to engage and is engaged; and
109
WHEREAS, this Corporation has entered into a valid and
subsisting agreement for the acquisition by this Corporation of all
of the outstanding stock of Woodville Electric Light and Power
Company Inc. subject to the authorization of such acquisition by
the Public Service Commission of the State of New York under and
pursuant to Section 70 of the Public Service Law; and
WHEREAS, it is deemed expedient that this Corporation merge
Woodville Electric Light and Power Company Inc. into itself and
thereby become and be possessed of all of the assets, property,
rights, privileges and franchises of said Woodville Electric Light
and Power Company Inc.;
NOW, THEREFORE, BE IT RESOLVED, that the provisions of these
resolutions shall be and become effective immediately upon the
authorized acquisition by this Corporation, as owner, of all of the
outstanding stock of Woodville Electric Light and Power Company
Inc.; and be it further
RESOLVED, that this Corporation merge Woodville Electric Light
and Power Company Inc. and assume all of its obligations subject to
obtaining approval of the Public Service Commission of the State of
New York, as provided in subdivision 5 of Section 85 of the Stock
Corporation Law; and be it further
RESOLVED, that the President or a Vice President and the
Secretary or the Treasurer of this Corporation be and they hereby
are authorized, empowered and directed to execute in the name and
under the seal of this Corporation a Certificate of Merger of said
Woodville Electric Light and Power Company Inc. with this
Corporation as provided in the foregoing resolution and to file the
same in the Department of State of the State of New York; and be it
further
RESOLVED, that the said officers of this Corporation be and
they hereby are authorized, empowered and directed to do all such
other acts and things and to execute and file such other documents
as may 110
be necessary, desirable or appropriate to effect the merger of said
Woodville Electric Light and Power Company Inc. with this
Corporation provided by the foregoing resolutions.
IN WITNESS WHEREOF, Niagara Mohawk Power Corporation has caused
this Certificate to be executed in its name, signed by Earle J.
Machold, its President, and Storrs M. Bishop, its Secretary, and
its corporate seal to be hereunto affixed this 1st day of November,
1956.
NIAGARA MOHAWK POWER CORPORATION
By EARLE J. MACHOLD
President
By STORRS M. BISHOP
Secretary
(CORPORATE SEAL)
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On this 1st day of November, 1956, before me personally came
EARLE J. MACHOLD and STORRS M. BISHOP, to me known, who, being by
me duly sworn, did depose and say and each for himself deposes and
says that he, the said Earle J. Machold, resides in the City of
Syracuse, State of New York, and is the President of Niagara Mohawk
Power Corporation, the corporation described in and which executed
the foregoing instrument; that he, the said Storrs M. Bishop,
resides in the City of Syracuse, State of New York, and is the
Secretary of said corporation; that he, the said Earle J. Machold,
and he, the said Storrs M. Bishop, both know the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that they signed their names
thereto by like order.
HERMAN B. NOLL
Notary Public
111
HERMAN B. NOLL
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-2901715
Certificate Filed in _______________ Co.
My Commission Expires March 30,1957
(SEAL)
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., November 1, 1956.
CASE 17894
Petition of Niagara Mohawk Power Corporation for authority to
acquire all of the capital stock of Woodville Electric Light and
Power Company, Inc., and to merge the said company.
__________
The Public Service Commission hereby consents to and approves
this merger by Niagara Mohawk Power Corporation of Woodville
Electric Light and Power Company, Inc., Pursuant to Section 85 of
the Stock Corporation Law, which merger is evidenced by this
certificate of merger executed November 1, 1956 by Niagara Mohawk
Power Corporation, -- in accordance with the order of said Public
Service Commission dated October 22, 1956.
By the Commission,
ALTON G. MARSHALL
Secretary
(SEAL)
fm
112
STATE OF NEW YORK )
12536
DEPARTMENT OF STATE ) ss.:
I Certify That I have compared the preceding copy with the
original Certificate of Merger of Woodville Electric Light and
Power Company Inc.
with
Niagara Mohawk Power Corporation
filed in this department on the 1st day of November, 1956, and
that such copy is a correct transcript therefrom and of the whole
of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this first day of November, one
thousand nine hundred fifty-six.
CARMINE G. DESAPIO
Secretary of State
(SEAL) By SAMUEL LONDON
Deputy Secretary of State
[CONFORMED]
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
113
of
NIAGARA MOHAWK POWER CORPORATION
__________
Pursuant to Section 36 of the Stock Corporation Law
__________
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED Jan 9-1957
TAX $130,000.00
FILING FEE $25.00
CARMINE G. DE SAPIO
Secretary of State
By M. R. KEENAN
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
114
__________
Pursuant to Section 36 of the Stock Corporation Law
__________
NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation") by its President thereunto duly
authorized DOES HEREBY CERTIFY:
I. The name of the Corporation is "Niagara Mohawk Power
Corporation."
The name under which the Corporation was originally
incorporated was "Niagara Hudson Public Service Corporation."
II. The Certificate of Consolidation forming the Corporation
(under the name of "Niagara Hudson Public Service Corporation") was
filed in the Department of State of the State of New York on July
31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was filed
in the Department of State of the State of New York on September
15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State of the
State of New York on January 5, 1950. Said Certificate of
Consolidation is hereinafter sometimes referred to as the "1950
Certificate of Consolidation."
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State of
the State of New York on January 5, 1950 to effect certain changes
authorized in subdivision two of Section 35 of the Stock
Corporation 115
Law. Said Certificate of Amendment is hereinafter sometimes
referred to as the "1950 Certificate of Amendment".
Pursuant to Section 36 of the Stock Corporation Law, a further
Certificate of Amendment was filed in the Department of State of
the State of New York on August 22, 1952 to effect an increase of
authorized shares without par value and to amend the statement
respecting capital of the Corporation. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1952
Certificate of Amendment."
III. The Certificate of Incorporation of the Corporation is
hereby amended to effect the following changes authorized in
subdivision two of Section 35 of the Stock Corporation Law:
(1) to eliminate from the enumeration and description of
shares which the corporation is authorized to issue all the
authorized shares of Class A Stock without par value, being
1,928,627 shares thereof of which 1,897,223 shares have heretofore
been converted into shares of Common Stock without par value and
the remaining 31,404 shares have heretofore been redeemed by the
Corporation;
(2) to authorize new shares by increasing the authorized
shares with par value from 1,200,000 shares to 1,800,000 shares and
by increasing the authorized shares without par value from
12,594,662 to 14,594,662 shares; and
(3) to change the statements respecting capital by amending
the provision authorized by Section 12 of the Stock Corporation Law
with respect to the dollar amount of minimum capital of the
Corporation.
IV. The Certificate of Incorporation of the Corporation, as
amended, is hereby amended so that Parts A, B and C of Article IV,
setting forth the number of authorized shares, the statements
respecting capital and the number of shares of each class, as so
amended, read as follows:
"IV.A. The total number of shares which the Corporation may
116
have 16,394,662, of which 1,800,000 are to have a par value of $100
each, and 14,594,662 are to be without par value.
"B. The capital of the Corporation shall be at least equal to
the sum of the aggregate par value of all issued shares having par
value plus the aggregate amount of consideration received by the
Corporation for the issuance of shares without par value, plus such
amounts as, from time to time, by resolution of the Board of
Directors, may be transferred thereto.
"Subject to the laws creating and defining the duties of the
Public Service Commission, authorized but unissued shares of the
Corporation without par value may be issued from time to time for
such consideration as may be fixed by the Board of Directors of the
Corporation.
"The capital of the Corporation shall be not less than
$264,650,393.
"C. The shares of the Corporation are to be classified as
follows:
1,800,000 shares are to be Preferred Stock with a par value
of $100 each, and 14,594,662 shares are to be Common Stock without
par value."
V. To further accomplish the elimination of shares of Class A
Stock, subdivisions (A) and (B) of Paragraph (5), and Paragraphs
(6), (7), (8), (9) and (10), of Part D of Article IV of the
Certificate of Incorporation of the Corporation, as amended, is
hereby amended to amend subdivisions (A) and (B) of Paragraph (5)
by eliminating the provisions therein relating to shares of Class A
Stock, to eliminate Paragraph (6) containing provisions applying to
shares of Class A Stock, to renumber Paragraph (7) containing
provisions applying to shares of Common Stock as Paragraph (6), to
eliminate the provisions contained in Paragraph (8) relating to
shares of Class A Stock and to add Subdivisions (A) and (B) thereof
as so amended as Subdivisions (C) and (D) to Paragraph (6) as
renumbered, to amend Paragraph (9) 117
relating to scrip certificates to eliminate provisions therein
relating to Class A Stock and renumber such Paragraph (9) as
Paragraph (7) and to renumber Paragraph (10) relating to quorum of
stockholders as Paragraph (8) so that said subdivisions (A) and (B)
of Paragraph (5) and said Paragraphs (6) to (10) of Part D of
Article IV, as so amended and renumbered, read as follows:
"(A) The holders of the Preferred Stock of each series shall be
entitled to receive, but only when, as and if declared by the Board
of Directors, dividends at the rate fixed for such series and no
more. Such dividends shall be payable on the last day of March,
June, September and December in each year and shall be cumulative
from such date as may be fixed for the series. All dividends
payable on the Preferred Stock shall be fully paid, or declared and
set apart for payment, before any dividends on the Common Stock
shall be paid or set apart for payment so that if, for all dividend
periods terminating on the same or an earlier date, dividends on
all outstanding shares of the Preferred Stock at the rates fixed
for the respective series shall not have been paid or set apart for
payment, the deficiency shall be fully paid or set apart for
payment before any dividends shall be paid or set apart for payment
on the Common Stock. Dividends in full shall not be paid or set
apart for payment on the Preferred Stock of any one series for any
dividend period unless dividends in full have been or are
contemporaneously paid or set apart for payment on the Preferred
Stock of all series for all dividend periods terminating on the
same or an earlier date. When the stated dividends are not paid in
full on all series of the Preferred Stock, the shares of all series
shall share ratably in the payment of dividends, including
accumulations, if any, in accordance with the sums which would be
payable on said shares if all dividends were paid in full. A
'dividend period' is the period between any two consecutive
dividend payment dates, excluding the first of such dates, as fixed
for the series to which a share or shares shall belong. Accruals
of dividends shall not bear interest.
"(B) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
Preferred Stock of each and every series then outstanding shall be
118
entitled to receive out of the net assets of the Corporation,
whether capital or surplus, the sums per share fixed for the shares
of the respective series and payable upon such dissolution,
liquidation or winding up, plus, in the case of each share, an
amount equal to the dividends accrued and unpaid thereon, whether
or not earned or declared, before any distribution of the assets of
the Corporation shall be made to the holders of the Common Stock,
as such.
"If the assets distributable on such dissolution, liquidation
or winding up shall be insufficient to permit the payment to the
holders of the Preferred Stock of the full amounts to which they
respectively are entitled as aforesaid, then said assets shall be
distributed ratably among the holders of the respective series of
the Preferred Stock in proportion to the sums which would be
payable on such dissolution, liquidation or winding up if all such
sums were paid in full in preference and priority over the shares
of any of the Common Stock.
"After payment to the holders of the Preferred Stock of the
full amounts to which they respectively are entitled as aforesaid,
the holders of the Preferred Stock, as such, shall have no right or
claim to any of the remaining assets of the Corporation.
"The sale, conveyance, exchange or transfer of all or
substantially all of the property of the Corporation, or the merger
or consolidation into or with any other corporation, shall not be
deemed a dissolution, liquidation or winding up for the purposes of
this subdivision (B)."
"COMMON STOCK
"(6) The following provisions shall apply to all shares of the
Common Stock:
"(A) Out of the assets of the Corporation available for
dividends remaining after full dividends on all stock having
priority as to 119
dividends over the Common Stock shall have been paid or declared
and set apart for payment and after making such provision, if any,
as the Board of Directors may deem necessary or advisable for
working capital and reserves or otherwise, then, and not otherwise,
dividends may be paid upon the Common Stock, but only when an as
determined by the Board of Directors.
"(B) The holders of the Common Stock shall have preemptive
rights as the same are defined in Section 39 of the Stock
Corporation Law, except that shares or other securities offered for
sale shall not be subject to such preemptive rights (1) if not so
subject under said Section 39 or (2) if they are the subject of a
public offering or of an offering to or through underwriters or
investment bankers who shall have agreed promptly to make a public
offering of such shares.
"(C) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, after there shall
have been paid to or set apart for the holders of all stock having
priority over the Common Stock the full preferential amounts to
which they are respectively entitled, the holders of the Common
Stock shall be entitled to receive pro rata all of the remaining
assets of the Corporation available for distribution to its
stockholders. The sale, conveyance, exchange or transfer of all or
substantially all of the property of the Corporation, or the merger
or consolidation into or with any other corporation, shall not be
deemed a dissolution, liquidation or winding up for the purposes of
this subdivision (C).
"The Board of Directors, by vote of a majority of the members
thereof, may distribute in kind to the holders of the Common Stock
pro rata such remaining assets of the Corporation, or may sell,
transfer or otherwise dispose of the remaining assets of the
Corporation, or any part thereof, to any other corporation or to
any person, and receive payment therefor wholly or partly in cash
or in stock or in obligations of such corporation or person, and
may sell, transfer or otherwise dispose of all or any of such
consideration received therefor and distribute the proceeds thereof
to the holders of the Common Stock pro rata.
120
"(D) The respective shares of the Common Stock shall entitle
the holders thereof to one vote for each share of such Common
Stock held by them, respectively, except as in this subdivision (D)
otherwise expressly provided.
"At all meetings of stockholders held for the purpose of
electing directors, each holder of shares of the Common Stock
shall be entitled to as many votes as shall equal the number of
votes which (except for this provision as to cumulative voting) he
would be entitled to cast for the election of directors with
respect to his shares of stock multiplied by the number of
directors to be elected by the holders of shares of the Common
Stock, and he may cast all of such votes for a single director or
may distribute them among the number to be voted for, or any two or
more of them, as he may see fit.
"SCRIP CERTIFICATES
"(7) Whenever any exchange or conversion of shares of stock of
the Corporation of any class or series for or into shares of
another class or series, or any exchange of shares of stock of the
Corporation for shares of stock of another corporation pursuant to
any plan of exchange or reorganization approved and accepted by the
Board of Directors of the Corporation, shall result in the creation
of interests in fractions of shares of stock of the Corporation of
any class or series, the Corporation shall not be required to issue
certificates representing such fractions of shares of stock, but a
scrip certificate or certificates shall be issued in respect of
such fractional interests in shares. Such scrip certificates will
entitle the holders thereof, upon such terms and under such
conditions as may be set by the Board of Directors of the
corporation, upon the surrender of scrip certificates aggregating
one or more full shares of stock of the respective class or series,
to receive, on or before a date to be fixed by the Board of
Directors of the Corporation, a certificate or certificates
representing such full shares. The scrip certificates will provide
that, as soon as practicable after such date so fixed by the Board
of Directors of the Corporation, any shares of stock represented by
outstanding scrip certificates shall 121
be sold and the proceeds held without accountability for interest
for the account of the holders of scrip certificates until a date
fixed by the Board of Directors and to be not more than two years
later, after which latter date all unsurrendered scrip certificates
of the Corporation shall become void.
"Scrip certificates shall be non-voting and non-dividend
bearing and shall not entitle the holders thereof to any rights as
stockholders of the Corporation.
"QUORUM OF STOCKHOLDERS
"(8) At all meetings of the stockholders of the Corporation a
quorum must be present for the transaction of business, and except
as otherwise provided under the heading 'General Provisions
Applicable to All Series of Preferred Stock' in respect of meetings
of the stockholders held for the election of directors by the vote
of a class or classes of stock, a quorum shall consist of the
holders of record of not less than a majority of the outstanding
shares of the Corporation entitled to vote, present either in
person or by proxy."
VI. It is not proposed to reduce the capital of the
Corporation by this Certificate of Amendment.
IN WITNESS WHEREOF, the undersigned have made and subscribed
this Certificate of Amendment this 8th day of January, 1957.
EARLE J. MACHOLD/s/
EARLE J. MACHOLD
President of Niagara Mohawk Power Corporation
(SEAL)
STORRS M. BISHOP/s/
STORRS M. BISHOP
122
Secretary of Niagara Mohawk Power Corporation
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 8th day of January, 1957, before me personally came
Earle J. Machold, to me known to be the person described in and who
executed the foregoing Certificate of Amendment on behalf of
Niagara Mohawk Power Corporation, and he thereupon duly
acknowledged to me that he executed the same.
MADELENE B. HACKETT/s/
(NOTARIAL SEAL)
MADELENE B. HACKETT
Notary Public, State of New York
#41-1616200
Qualified in Queens County
Certificate filed in New York County
Term Expires March 30, 1957
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 8th day of January, 1957, before me personally came
Storrs M. Bishop, to me known to be the person described in and who
executed the foregoing Certificate of Amendment on behalf of
Niagara Mohawk Power Corporation, and he thereupon duly
acknowledged to me that he executed the same.
MADELENE B. HACKETT/s/
(NOTARIAL SEAL)
MADELENE B. HACKETT
Notary Public, State of New York
#41-1616200
Qualified in Queens County
123
Certificate filed in New York County
Term Expires March 30, 1957
Affidavit of
Officers of the Corporation
Pursuant to Section 37 of the Stock Corporation Law
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
Earle J. Machold and Storrs M. Bishop, being duly sworn, depose
and say, and each for himself deposes and says, that he, Earle J.
Machold, is the President of the Corporation, and he, Storrs M.
Bishop, is the Secretary of said corporation; that they have been
authorized to execute and file the foregoing Certificate by the
votes cast in person or by proxy of the holders of record of a
majority of the outstanding shares entitled to vote at the
stockholders' meeting at which such votes were cast with relation
to the proceedings provided for in the foregoing Certificate; that
neither the Certificate of Incorporation nor any other Certificate
filed pursuant to law requires a larger proportion of votes; that
such votes were cast at a stockholders' meeting held upon notice
pursuant to Section 45 of the Stock Corporation Law and that such
meeting was duly called and held on the 4th day of December, 1956.
EARLE J. MACHOLD/s/
President
STORRS M. BISHOP/s/
Secretary
124
Subscribed and sworn to before me
this 8th day of January, 1957.
MADELENE B. HACKETT/s/
MADELENE B. HACKETT
Notary Public, State of New York
#41-1616200
Qualified in Queens County
Certificate filed in New York County
Term Expires March 30, 1957
(NOTARIAL SEAL)
Affidavit of
Officers of the Corporation
Pursuant to Section 37 of the Stock Corporation Law
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
Earle J. Machold and James H. Morrell, being duly sworn,
depose and say, and each for himself deposes and says, that he,
Earle J. Machold, is the President, and he, James H. Morrell, is
the Treasurer of Niagara Mohawk Power Corporation, and that by the
foregoing Certificate of Amendment the number of additional shares
not resulting from a change of shares which the Corporation is
thereby authorized to issue is 600,000 shares of Preferred Stock of
the par value of $100 per share and 2,000,000 shares of Common
Stock without par value; that no shares have thereby been changed
as provided in subparagraph (5) of paragraph (C) of subdivision two
of Section 35 of the Stock Corporation Law; and that the par value
of any shares with par value has not been increased.
125
EARLE J. MACHOLD/s/
President
JAMES H. MORRELL/s/
Treasurer
Subscribed and sworn to before me
this 8th day of January, 1957.
MADELENE B. HACKETT/s/
Notary Public
MADELINE B. HACKETT
Notary Public, State of New York
#41-1616200
Qualified in Queens County
Certificate filed in New York County
Term Expires March 30, 1957
(NOTARIAL SEAL)
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N. Y., January 9, 1957.
CASE 18134--Petition of Niagara Mohawk Power Corporation for
approval of increase of its capital stock, for authority to issue
$48,150,200 of convertible debentures, and for authority to issue
126
common stock.
* * * * * *
The Public Service Commission hereby consents to and approves
this Certificate of Amendment of Certificate of Incorporation of
Niagara Mohawk Power Corporation, Pursuant to Section 36 of the
Stock Corporation Law, executed January 8, 1957,--in accordance
with the order of said Public Service Commission dated January 7,
1957.
By the Commission
(COMMISSION SEAL)
ALTON G. MARSHALL/s/
Secretary
fm
[CONFORMED]
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 11 of the Stock Corporation Law
Dated: May 21, 1957
127
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED May 22, 1957
TAX $ None
FILING FEE $25.00
CARMINE G. DE SAPIO
Secretary of State
By M. R. KEENAN
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
__________
Pursuant to Section 11 of the Stock Corporation Law
__________
NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation") by its President and Secretary
thereunto duly authorized DOES HEREBY CERTIFY:
I. The name of the Corporation is "Niagara Mohawk Power
Corporation".
The name under which the Corporation was originally
incorporated
128
was "Niagara Hudson Public Service Corporation".
II. The Certificate of Consolidation forming the Corporation
(under the name of "Niagara Hudson Public Service Corporation") was
filed in the Department of State of the State of New York on July
31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was
filed in the Department of State of the State of New York on
September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State of the
State of New York on January 5, 1950. Said Certificate of
Consolidation is hereinafter sometimes referred to as the "1950
Certificate of Consolidation".
Pursuant to Section 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State of
the State of New York on January 5, 1950 to effect certain changes
authorized in subdivision 2 of Section 35 of the Stock Corporation
Law. Said Certificate of Amendment is hereinafter sometimes
referred to as the "1950 Certificate of Amendment".
Pursuant to Section 36 of the Stock Corporation Law, a further
Certificate of Amendment was filed in the Department of State of
the State of New York on August 22, 1952 to effect an increase of
authorized shares without par value and to amend the statement
respecting capital of the Corporation.
Pursuant to Section 11 of the Stock Corporation Law, a further
Certificate was filed in the Department of State of the State of
New York on May 5, 1954 to set forth as paragraph (4A) of Part D of
Article IV of the 1950 Certificate of Consolidation, as amended by
Article V of the 1950 Certificate of Amendment, the designations,
129
preferences, privileges and voting powers, and the restrictions or
qualifications applicable to 210,000 shares of Preferred Stock,
4.10% Series. Said Certificate, pursuant to Section 11 of the
Stock Corporation Law, is hereinafter sometimes referred to as the
"1954 Certificate".
Pursuant to Section 36 of the Stock Corporation Law, a further
Certificate of Amendment was filed in the Department of State of
the State of New York on January 9, 1957 to eliminate from the
enumeration and description of shares which the Corporation is
authorized to issue all the authorized shares of Class A Stock
without par value, to authorize new shares by increasing the
authorized shares with par value and the authorized shares without
par value and to change the statements respecting capital. Said
Certificate, pursuant to Section 36 of the Stock Corporation Law,
is hereinafter sometimes referred to as the "January 1957
Certificate".
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV, under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"RESOLVED, that consent be and it hereby is given to the issue
by the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III. The certificate of incorporation of the Corporation, as
amended and supplemented by any certificate filed pursuant to law,
is 130
hereby amended by the addition of the following provisions stating
the designations, preferences, privileges and voting powers, and
the restrictions or qualifications of a series of Preferred Stock,
to consist of 200,000 shares of the authorized 1,800,000 shares of
Preferred Stock of the Corporation, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph (4B) (of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and by
the 1954 Certificate and the January 1957 Certificate) and to read
as follows:
Particular Provisions Applicable to Preferred Stock, 5.25%
Series
(4B) The designation, preferences, privileges and voting
powers of the 200,000 shares of the Preferred Stock, 5.25% Series,
and the restrictions or qualifications thereof (insofar as they
differ from or supplement the provisions which are applicable to
all shares of the Preferred Stock irrespective of series), are as
follows:
(A) The series shall be designated as Preferred Stock, 5.25%
Series;
(B) The dividend rate thereof shall be five and twenty-five
one- hundredths per cent (5.25%) per annum. The dividends on the
shares of the Preferred Stock, 5.25% Series shall be cumulative
from May 28, 1957;
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment, the Preferred Stock, 5.25%
Series shall have no voting rights whatsoever and is specifically
excluded from the right to vote in a proceeding for mortgaging the
property 131
and franchises of the Corporation pursuant to Section 16 of the
Stock Corporation Law, for authorizing any guaranty pursuant to
Section 19 of said Law, for sale of the franchises and property of
the Corporation pursuant to Section 20 of said Law, for
consolidation pursuant to Section 86 of said Law, for voluntary
dissolution pursuant to Section 105 of said Law or for change of
name pursuant to the General Corporation Law or pursuant to Section
36 of the Stock Corporation Law;
(D) The sum per share payable upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $107.50 per
share through April 30, 1962; $105.00 per share thereafter through
April 30, 1967; $103.50 per share thereafter through April 30,
1972; and $102.00 per share thereafter, in each case plus an amount
equal to the dividends accrued and unpaid on such share, whether or
not earned or declared;
(E) The sum per share payable upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 5.25% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $107.50 per share through April 30, 1962;
$105.00 per share thereafter through April 30, 1967; $103.50 per
share thereafter through April 30, 1972; and $102.00 per share
thereafter, in each case plus an amount equal to the dividends
accrued and unpaid thereon to the date fixed for redemption,
whether or not earned or declared;
(G) The shares of the Preferred Stock, 5.25% Series shall not
be convertible into or exchangeable for other securities of the
Corporation;
(H) There shall be no sinking fund with respect to the shares
of the Preferred Stock, 5.25% Series; and
132
(I) The shares of the Preferred Stock, 5.25% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IN WITNESS WHEREOF, the undersigned have made and subscribed
this Certificate in triplicate this 21st day of May, 1957.
/s/ EARLE J. MACHOLD
President
/s/ JOHN G. BENACK
Secretary
CORPORATE
(SEAL)
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 21st day of May, 1957, before me personally came EARLE
J. MACHOLD and JOHN G. BENACK, to me known and known to me to be
the persons described in and who executed the foregoing
certificate, and they thereupon severally duly acknowledged to me
that they executed the same.
/s/ FRED L. JOHNSON
FRED L. JOHNSON
Notary Public, State of New York
No. 24-1978900
Qualified in Kings County
NOTARIAL Cert. filed with New York County Clerk
133
(SEAL) Commission Expires March 30, 1959
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
EARLE J. MACHOLD and JOHN G. BENACK, being duly sworn, depose
and say, and each for himself deposes and says, that he, Earle J.
Machold, is the President of Niagara Mohawk Power Corporation, and
he, JOHN G. BENACK, is the Secretary thereof; that they were duly
authorized by the Board of Directors of Niagara Mohawk Power
Corporation to execute and file the foregoing Certificate, and that
the designations, preferences, privileges and voting powers of the
series of Preferred Stock described therein, and the restrictions
or qualifications thereof, were duly authorized by the Board of
Directors of Niagara Mohawk Power Corporation.
/s/ EARLE J. MACHOLD
/s/ JOHN G. BENACK
Subscribed and sworn to before me
this 21st day of May, 1957.
/s/ FRED L. JOHNSON
FRED L. JOHNSON
Notary Public, State of New York
No. 24-1978900
Qualified in Kings County
Cert. filed with New York County Clerk
Commission Expires March 30, 1959
134
NOTARIAL
(SEAL)
STATE OF NEW YORK )
DEPARTMENT STATE ) ss.:
I certify That I have compared the preceding copy with the
original Certificate of"NIAGARA MOHAWK POWER CORPORATION",pursuant
to Section 11 of the Stock Corporation Law, filed in this
department on the 22nd day of May, 1957, and that such copy is a
correct transcript therefrom and of the whole of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this twenty-second day of May, one
thousand nine hundred fifty-seven.
CARMINE G. DE SAPIO
Secretary of State
(STATE SEAL)
By SAMUEL LONDON
Deputy Secretary of State
[CONFORMED]
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 11 of the Stock Corporation Law
135
Dated: February 17, 1958
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED Feb. 18, 1958
TAX $ None
FILING FEE $25.00
/s/ CARMINE G. DE SAPIO
Secretary of State
By B. HORAN
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
_________2_
Pursuant to Section 11 of the Stock Corporation Law
__________
NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation") by its President and Secretary
thereunto duly authorized DOES HEREBY CERTIFY:
I. The name of the Corporation is "Niagara Mohawk Power
Corporation". The name under which the Corporation was originally
136
incorporated was "Niagara Hudson Public Service Corporation".
II. The Certificate of Consolidation forming the Corporation
(under the name of "Niagara Hudson Public Service Corporation") was
filed in the Department of State of the State of New York on July
31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was filed
in the Department of State of the State of New York on September
15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State of the
State of New York on January 5, 1950. Said Certificate of
Consolidation is hereinafter sometimes referred to as the
"1950Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State of
theState of New York on January 5, 1950 to effect certain changes
authorized in subdivision 2 of Section 35 of the Stock Corporation
Law. Said Certificate of Amendment is hereinafter sometimes
referred to as the "1950 Certificate of Amendment".
Pursuant to Section 36 of the Stock Corporation Law, a further
Certificate of Amendment was filed in the Department of State of
the State of New York on August 22, 1952 to effect an increase of
authorized shares without par value and to amend the statement
respecting capital of the Corporation.
Pursuant to Section 11 of the Stock Corporation Law, a further
Certificate was filed in the Department of State of the State of
New York on May 5, 1954 to set forth as paragraph (4A) of Part D of
Article IV of the 1950 Certificate of Consolidation, as amended by
Article V of the 1950 Certificate of Amendment, the designations,
137
preferences, privileges and voting powers, and the restrictions or
qualifications applicable to 210,000 shares of Preferred Stock,
4.10% Series. Said Certificate, pursuant to Section 11 of the
Stock Corporation Law, is hereinafter sometimes referred to as the
"1954 Certificate".
Pursuant to Section 36 of the Stock Corporation Law, a further
Certificate of Amendment was filed in the Department of State of
the State of New York on January 9, 1957 to eliminate from the
enumeration and description of shares which the Corporation is
authorized to issue all the authorized shares of Class A Stock
without par value, to authorize new shares by increasing the
authorized shares with par value and the authorized shares without
par value and to change the statements respecting capital. Said
Certificate, pursuant to Section 36 of the Stock Corporation Law,
is hereinafter sometimes referred to as the "January 1957
Certificate".
Pursuant to Section 11 of the Stock Corporation Law, a further
Certificate was filed in the Department of State of the State of
New York on May 22, 1957 to set forth as paragraph (4B) of Part D
of Article IV of the 1950 Certificate of Consolidation, as amended
by Article V of the 1950 Certificate of Amendment and by the 1954
Certificate and the January 1957 Certificate, the designations,
preferences, privileges and voting powers, and the restrictions or
qualifications applicable to 200,000 shares of Preferred Stock,
5.25% Series. Said Certificate, pursuant to Section 11 of the
Stock Corporation Law, is hereinafter sometimes referred to as the
"May 1957 Certificate".
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV, under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
138
"RESOLVED, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III. The certificate of incorporation of the Corporation, as
amended and supplemented by any certificate filed pursuant to law,
is hereby amended by the addition of the following provisions
stating the designations, preferences, privileges and voting
powers, and the restrictions or qualifications of a series of
Preferred Stock, to consist of 250,000 shares of the authorized
1,800,000 shares of Preferred Stock of the Corporation, as fixed by
the Board of Directors of the Corporation before the issuance of
such series, such provisions so added to be designated as paragraph
(4C) (of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and by the 1954 Certificate, the January 1957 Certificate
and the May 1957 Certificate) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 4.85%
Series
(4C) The designations, preferences, privileges and voting
powers of the 250,000 shares of the Preferred Stock, 4.85% Series,
and the restrictions or qualifications thereof (insofar as they
differ from or supplement the provisions which are applicable to
all shares of the Preferred Stock irrespective of series), are as
follows:
(A) The series shall be designated as Preferred Stock, 4.85%
Series;
(B) The dividend rate thereof shall be four and eighty-five
one- hundredths per cent (4.85%) per annum. The dividends on the
shares of the Preferred Stock, 4.85% Series shall be cumulative
from February 25, 1958;
139
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment, the Preferred Stock, 4.85%
Series shall have no voting rights whatsoever and is specifically
excluded from the right to vote in a proceeding for mortgaging the
property and franchises of the Corporation pursuant to Section 16
of the Stock Corporation Law, for authorizing any guaranty pursuant
to Section 19 of said Law, for sale of the franchises and property
of the Corporation pursuant to Section 20 of said Law, for
consolidation pursuant to Section 86 of said Law, for voluntary
dissolution pursuant to Section 105 of said Law or for change of
name pursuant to the General Corporation Law or pursuant to Section
36 of the Stock Corporation Law;
(D) The sum per share payable upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $106 per
share through January 31, 1963; $104 per share thereafter through
January 31, 1968; $103 per share thereafter through January 31,
1973; and $102 per share thereafter, in each case plus an amount
equal to the dividends accrued and unpaid on such share, whether or
not earned or declared;
(E) The sum per share payable upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 4.85% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $106 per share through January 31, 1963; $104
per share thereafter through January 31, 1968; $103 per share
thereafter through January 31, 1973; and $102 per share thereafter,
in each case plus an amount equal to the dividends accrued and
unpaid thereon to the date fixed for redemption, whether or not
earned or declared; provided, however, the Board of Directors of
the Corporation shall not on or prior to February 1, 1963 exercise
its option to redeem any 140
shares of the Preferred Stock, 4.85% Series as a part of or in
anticipation of any refunding operation by the application,
directly or indirectly, of borrowed funds or the proceeds of issue
of any shares of Preferred Stock or any stock ranking prior to or
on a parity with the Preferred Stock if such borrowed funds have an
interest rate or cost to the Corporation (calculated in accordance
with accepted financial practice), or such shares have a dividend
rate or cost to the Corporation so calculated, less than the
dividend rate per annum of the Preferred Stock, 4.85% Series;
(G) The shares of the Preferred Stock, 4.85% Series shall not
be convertible into or exchangeable for other securities of the
Corporation;
(H) There shall be no sinking fund with respect to the shares
of the Preferred Stock, 4.85% Series; and
(I) The shares of the Preferred Stock, 4.85% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IN WITNESS WHEREOF, the undersigned have made and subscribed
this Certificate in triplicate this 17th day of February, 1958.
/s/ EARLE J. MACHOLD
President
(CORPORATE SEAL)
/s/ JOHN G. BENACK
Secretary
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
141
On this 17th day of February, 1958, before me personally came
EARLE J. MACHOLD and JOHN G. BENACK, to me known and known to me to
be the persons described in and who executed the foregoing
certificate, and they thereupon severally duly acknowledged to me
that they executed the same.
/s/ AMY B. MAC FARLANE
(NOTARIAL SEAL)
AMY B. MAC FARLANE
Notary Public, State of New York
No. 31-7649500
Qualified in New York County
Commission expires March 30, 1958
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
EARLE J. MACHOLD and JOHN G. BENACK, being duly sworn, depose
and say, and each for himself deposes and says, that he, Earle J.
Machold. is the President of Niagara Mohawk Power Corporation, and
he, JOHN G. BENACK, is the Secretary thereof; that they were duly
authorized by the Board of Directors of Niagara Mohawk Power
Corporation to execute and file the foregoing Certificate, and that
the designations, preferences, privileges and voting powers of the
series of Preferred Stock described therein, and the restrictions
or qualifications thereof, were duly authorized by the Board of
Directors of Niagara Mohawk Power Corporation.
/s/ EARLE J. MACHOLD
/s/ JOHN G. BENACK
Subscribed and sworn to before me
142
this 17th day of February, 1958.
/s/ AMY B. MAC FARLANE
AMY B. MAC FARLANE
Notary Public, State of New York
No. 31-7649500
Qualified in New York County
Commission expires March 30, 1958
(NOTARIAL SEAL)
1618
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
I CERTIFY That I have compared the preceding copy with the
original Certificate of "NIAGARA MOHAWK POWER CORPORATION",
Pursuant to Section 11 of the Stock Corporation Law, filed in this
department on the 18th day of February, 1958, and that such copy is
a correct transcript therefrom and of the whole of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this eighteenth day of February, one
thousand nine hundred fifty-eight.
/s/ CARMINE G. DE SAPIO
Secretary of State.
(SEAL)
By /s/ SAMUEL LONDON
Deputy Secretary of State.
143
CERTIFICATE OF MERGER
of
THE CAZENOVIA ELECTRIC COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
Dated: April 30, 1958
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED APRIL 30, 1958
TAX $ None
FILING FEE $25
CARMINE G. DESAPIO
Secretary of State
By M. R. KEENAN
144
CERTIFICATE OF MERGER
of
THE CAZENOVIA ELECTRIC COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 85 of the Stock Corporation Law
__________
The undersigned, NIAGARA MOHAWK POWER CORPORATION, pursuant to
Section 85 of the Stock Corporation Law, hereby certifies as
follows:
1. NIAGARA MOHAWK POWER CORPORATION (hereinafter sometimes
referred to as "the Corporation"), is a stock corporation duly
organized and existing under the laws of the State of New York.
2. The Corporation owns all of the issued and outstanding
capital stock of The Cazenovia Electric Company, which is a stock
corporation organized under the laws of the State of New York and
is authorized to engage and is engaged in business similar or
incidental to the business in which the Corporation is authorized
to engage and is engaged.
3. At a meeting of the Board of Directors of the Corporation
duly called and held on the 16th day of January, 1958, the
following resolutions were duly adopted:
WHEREAS, The Cazenovia Electric Company is a stock corporation
organized under the laws of the State of New York and is authorized
to engage and is engaged in business similar or incidental to the
145
business in which this Corporation is authorized to engage and is
engaged; and
WHEREAS, this Corporation has entered into a valid and
subsisting agreement for the acquisition by this Corporation of all
of the outstanding stock of The Cazenovia Electric Company subject
to the authorization of such acquisition by the Public Service
Commission of the State of New York under and pursuant to Section
70 of the Public Service Law; and
WHEREAS, it is deemed expedient that this Corporation merge The
Cazenovia Electric Company into itself and thereby become and be
possessed of all of the assets, property, rights, privileges and
franchises of said The Cazenovia Electric Company;
NOW, THEREFORE, BE IT
RESOLVED, that the provisions of these resolutions shall be and
become effective immediately upon the authorized acquisition by
this Corporation, as owner, of all of the outstanding stock of The
Cazenovia Electric Company; and be it further
RESOLVED, that this Corporation merge The Cazenovia Electric
Company and assume all of its obligations subject to obtaining
approval of the Public Service Commission of the State of New York,
as provided in subdivision 5 of Section 85 of the Stock Corporation
Law; and be it further
RESOLVED, that the President or a Vice President and the
Secretary or the Treasurer of this Corporation be and they hereby
are authorized, empowered and directed to execute in the name and
under the seal of this Corporation a Certificate of Merger of said
The Cazenovia Electric Company with this Corporation as provided in
the foregoing resolution and to file the same in the Department of
State of the State of New York; and be it further
RESOLVED, that the said officers of this Corporation be and
they hereby are authorized, empowered and directed to do all such
other 146
acts and things and to execute and file such other documents as may
be necessary, desirable or appropriate to effect the merger of said
The Cazenovia Electric Company with this Corporation provided by
the foregoing resolutions.
IN WITNESS WHEREOF, Niagara Mohawk Power Corporation has caused
this Certificate to be executed in its name, signed by Earle J.
Machold, its President, and John G. Benack, its Secretary, and its
corporate seal to be hereunto affixed this 30th day of April, 1958.
NIAGARA MOHAWK POWER CORPORATION
By EARLE J. MACHOLD
President
(CORPORATE SEAL)
By JOHN G. BENACK
Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
On this 30th day of April, 1958, before me personally came
EARLE J. MACHOLD and JOHN G. BENACK, to me known, who, being by me
duly sworn, did depose and say and each for himself deposes and
says that he, the said Earle J. Machold, resides in the City of
Syracuse, State of New York, and is the President of Niagara Mohawk
Power Corporation, the corporation described in and which executed
the foregoing instrument; that he, the said John G. Benack, resides
in the City of Syracuse, State of New York, and is the Secretary of
said corporation; that he, the said Earle J. Machold, and he, the
said John G. Benack, both know the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said
corporation, and that they signed their names thereto by like
order.
By MARCELLA C. EICHENLAUB
Notary Public
147
MARCELLA C. EICHENLAUB
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1089575
My Commission Expires March 30, 1959
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N. Y., April 30, 1958.
CASE 18714
Petition of Niagara Mohawk Power Corporation for authority to
acquire the capital stock of The Cazenovia Electric Company, to
issueup to 9,936 shares of petitioner's common stock in exchange
therefor, and to merge The Cazenovia Electric Company with
petitioner.
__________
The Public Service Commission hereby consents to and approves
this merger by Niagara Mohawk Power Corporation of The Cazenovia
Electric Company, pursuant to Section 85 of the Stock Corporation
Law, which merger is evidenced by this certificate of merger
executed April 30, 1958 by Earle J. Machold, President and John G.
Benack, Secretary of Niagara Mohawk Power Corporation,--in
accordance with the order of said Public Service Commission dated
March 25, 1958.
By the Commission,
(SEAL)
ALTON G. MARSHALL
Secretary
148
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
I Certify That I have compared the preceding copy with the
original Certificate of Merger
of
The Cazenovia Electric Company
with
Niagara Mohawk Power Corporation,
filed in this department on the 30th day of April, 1958, and
that such copy is a correct transcript therefrom and of the whole
of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this thirtieth day of April, one
thousand nine hundred fifty-eight.
By
CARMINE G. DESAPIO
Secretary of State
(SEAL)
SAMUEL LONDON
Deputy Secretary of State
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
149
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
Dated: May 4, 1965
__________
(Endorsed)
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED MAY 5 1965
TAX $23,242.70
FILING FEE $30--
JOHN P. LOMENZO
Secretary of State
By D. BELL
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
150
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Vice President and the
Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is
hereby further amended to effect changes authorized by Section
801(b) of the Business Corporation Law, to wit: (1) to change the
14,594,662 previously authorized shares of Common Stock without par
value into 29,189,324 shares of Common Stock of the par value of $8
each, and (2) to increase the aggregate number of shares of Common
Stock of the par value of $8 each which the Corporation shall have
the authority to issue by an additional 5,810,676 shares of such
Common Stock, so that the authorized shares of capital stock shall
consist of 1,800,000 shares of Preferred Stock with a par value of
$100 each and 35,000,000 shares of Common Stock with a par value of
$8 each.
IV
The Certificate of Incorporation of the Corporation, as
amended, is hereby amended so that Parts A and C of Article IV
setting forth the number of authorized shares and the number of
shares of each class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may
151
have is 36,800,000, of which 1,800,000 are to have a par value of
$100 each and 35,000,000 are to have a par value of $8 each."
"C. The shares of the Corporation are to be classified as
follows:
1,800,000 shares are to be Preferred Stock with a par value of
$100 each; and 35,000,000 shares are to be Common Stock with a par
value of $8 each."
V
The 14,594,662 previously authorized shares of Common Stock
without par value, of which 13,680,340 shares are issued and
outstanding, are hereby changed to 29,189,324 shares of Common
Stock of the par value of $8 each, of which 27,360,680 shares will
be issued shares, and the manner in which such change will be
effected is as follows: each share of previously authorized Common
Stock without par value is hereby changed into two shares of Common
Stock of the par value of $8 each.
VI
The stated capital of the Corporation will not be affected by
this Amendment to the Certificate of Incorporation of the
Corporation.
VII
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of a majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which such votes were cast with relation to the
proceedings provided for in this Amendment and neither the
Certificate of Incorporation nor any other certificate filed
pursuant to law requires a larger proportion of votes. Such votes
were cast in person or by proxy at a stockholders' meeting duly
held 152
at the offices of the Corporation at No. 300 Erie Boulevard West,
in the City of Syracuse, New York, on the fourth day of May, 1965,
at 11 o'clock A.M., pursuant to Section 605 of the Business
Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 4th day of May, 1965.
LAUMAN MARTIN
Lauman Martin, Vice President
[CORPORATE SEAL]
JOHN G. BENACK
John G. Benack, Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
Lauman Martin, being duly sworn, deposes and says, that he is
the Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and knows
the contents thereof, and that the statements contained therein are
true.
LAUMAN MARTIN
Sworn to before me this
4th day of May, 1965
PHYLLIS FANNING
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1158700
153
My Commission Expires March 30, 1967
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., May 5, 1965
CASE 23554--Petition of Niagara Mohawk Power Corporation for
approval of a certificate amending its certificate of incorporation
to increase the number of its shares and to change shares without
par value into shares with par value.
* * *
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF AMENDMENT of the CERTIFICATE OF INCORPORATION
of NIAGARA MOHAWK POWER CORPORATION Under Section 805 of the
Business Corporation Law, executed May 4, 1965 in accordance with
the order of the Public Service Commission dated March 19, 1965.
By the Commission
[SEAL]
SAMUEL R. MADISON
Secretary
CERTIFICATE OF MERGER
OF
PAUL SMITH'S ELECTRIC LIGHT AND POWER AND RAILROAD COMPANY
AND
NIAGARA MOHAWK POWER CORPORATION
154
Pursuant to Section 905 of the Business Corporation Law
Dated: January 17, 1966
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED JAN. 17, 1966
TAX $ None
FILING FEE $30.00
JOHN P. LOMENZO
Secretary of State
By N.B.
CERTIFICATE OF MERGER
of
PAUL SMITH'S ELECTRIC LIGHT AND POWER AND
RAILROAD COMPANY
into
155
NIAGARA MOHAWK POWER CORPORATION
Under Section 905 of the
Business Corporation Law
__________
Pursuant to the provisions of Section 905 of the Business
Corporation Law, the undersigned, being a Vice President and the
Secretary of Niagara Mohawk Power Corporation, hereby certify:
1. The name of the subsidiary corporation to be merged is Paul
Smith's Electric Light and Power and Railroad Company. It was
originally incorporated under the name of The Paul Smith's Electric
Light and Power Company.
The name of the surviving corporation is Niagara Mohawk Power
Corporation. It was originally incorporated under the name of
Niagara Hudson Public Service Corporation.
2. The designation and number of outstanding shares of each
class of the subsidiary corporation to be merged is 12,500 shares
of $100 par value Common Capital Stock, all of which are owned by
the surviving corporation.
3. The effective date of the merger shall be the date of
filing of this certificate of merger by the Department of State.
4. There is no provision for the abandonment of the plan of
merger.
5. The certificate of incorporation of Paul Smith's Electric
ight and Power and Railroad Company (under the name of The Paul
Smith's Electric Light and Power Company) was filed by the
Secretary of State on July 10, 1905. An amended certificate of
incorporation of said corporation under the name of The Paul
Smith's Electric Light and Power and Railroad Company was filed by
the Secretary of State on May 2, 1906. A certificate of extension
of 156
corporate existence of said corporation under the name of Paul
Smith's Electric Light and Power and Railroad Company was filed by
the Department of State on December 15, 1936.
The date when the certificate of consolidation forming Niagara
Hudson Public Service Corporation was filed by the Department of
State was July 31, 1937.
6. The surviving corporation owns all of the shares of the
subsidiary corporation to be merged.
7. The plan of merger to be effected by the filing of this
certificate has been adopted by the vote of a majority of directors
of Niagara Mohawk Power Corporation present at a meeting of the
Board of said Corporation at which a quorum was present.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 17th day of January, 1966.
LAUMAN MARTIN, Vice President,
NIAGARA MOHAWK POWER CORPORATION
JOHN G. BENACK, Secretary,
NIAGARA MOHAWK POWER CORPORATION
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says, that he is a
Vice President of NIAGARA MOHAWK POWER CORPORATION, the corporation
named in and described in the foregoing certificate. That he has
read and executed the foregoing certificate and knows the contents
157
thereof, and that the statements contained therein are true.
Lauman Martin
Sworn to before me this
17th day of January, 1966.
Herman B. Noll
HERMAN B. NOLL
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-2901715
Certificate Filed in _______________Co.
My Commission Expires March 30, 1967
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N. Y., January 17, 1966
Case 23754 -- Petition of Niagara Mohawk Power Corporation for
authority to acquire all the capital stock of Paul Smith's Electric
Light & Power & Railroad Company, to issue 41,750 shares of
petitioner's $8 par value common stock in exchange therefor, and to
merge Paul Smith's Electric Light & Power & Railroad Company with
petitioner.
* * * *
The Public Service Commission hereby consents to and approves
this Merger by Niagara Mohawk Power Corporation of Paul Smith's
Electric Light & Power & Railroad Company, Pursuant to Section 905
of the Business Corporation Law, which Merger is evidenced by this
Certificate of Merger executed January 17, 1966, in accordance with
the order of this Commission dated October 19, 1966 and amended
December 21, 1965.
158
By the Commission
Samuel R. Madison
Secretary
STATE OF NEW YORK ) 933
DEPARTMENT OF STATE) ss.:
I CERTIFY That I have compared the preceding copy with the
original Certificate of Merger of PAUL SMITH'S ELECTRIC LIGHT AND
POWER AND RAILROAD COMPANY with NIAGARA MOHAWK POWER CORPORATION,
filed in this department on the 17th day of January, 1966, and that
such copy is a correct transcript therefrom and of the whole of
such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this seventeenth day of January, one
thousand nine hundred sixty-six.
John P. Lomenzo
Secretary of State
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
159
Dated: August 22, 1967
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED AUG 24 1967
TAX $ NONE
FILING FEE $30
JOHN P. LOMENZO
Secretary of State
By M. H.
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
Pursuant to the provisions of Section 805 of the Business
Corporation Law, the undersigned being a Vice President and the
160
Secretary of NIAGARA MOHAWK POWER CORPORATION HEREBY CERTIFY:
I. The name of the Corporation is Niagara Mohawk Power
Corporation. It was originally incorporated under the name of
Niagara Hudson Public Service Corporation.
II. The Certificate of Consolidation forming the Corporation
was filed in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was filed
in the Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to Section 36 of the Stock Corporation Law, a further
Certificate of Amendment was filed in the Department of State on
August 22, 1952 to effect an increase of authorized shares without
par value and to amend the statement respecting capital of the
Corporation.
Pursuant to Section 11 of the Stock Corporation Law, a further
Certificate was filed in the Department of State on May 5, 1954 to
set forth as paragraph (4A) of Part D of Article IV of the 1950
Certificate of Consolidation, as amended by Article V of the 1950
161
Certificate of Amendment, the designations, preferences, privileges
and voting powers, and the restrictions or qualifications
applicable to 210,000 shares of Preferred Stock, 4.10% Series.
Said Certificate, pursuant to Section 11 of the Stock Corporation
Law, is hereinafter sometimes referred to as the "1954
Certificate".
Pursuant to Section 36 of the Stock Corporation Law, a further
Certificate of Amendment was filed in the Department of State on
January 9, 1957 to eliminate from the enumeration and description
of shares which the Corporation is authorized to issue all the
authorized shares of Class A Stock without par value, to authorize
new shares by increasing the authorized shares with par value and
the authorized shares without par value and to change the
statements respecting capital. Said Certificate, pursuant to
Section 36 of the Stock Corporation Law, is hereinafter sometimes
referred to as the "January 1957 Certificate".
Pursuant to Section 11 of the Stock Corporation Law, a further
Certificate was filed in the Department of State on May 22, 1957 to
set forth as paragraph (4B) of Part D of Article IV of the 1950
Certificate of Consolidation, as amended by Article V of the 1950
Certificate of Amendment and by the 1954 Certificate and the
January 1957 Certificate, the designations, preferences, privileges
and voting powers, and the restrictions or qualifications
applicable to 200,000 shares of Preferred Stock, 5.25% Series.
Said Certificate, pursuant to Section 11 of the Stock Corporation
Law, is hereinafter sometimes referred to as the "May 1957
Certificate".
Pursuant to Section 11 of the Stock Corporation Law, a further
certificate was filed in the Department of State on February 18,
1958 to set forth as paragraph 4(C) of Part D to Article IV of the
1950 Certificate of Consolidation, as amended by Article V of the
1950 Certificate of Amendment and by the 1954 Certificate, the
January 1957 Certificate and the May 1957 Certificate, the
designations, preferences, privileges and voting powers, and the
restrictions and qualifications applicable to 250,000 shares of
Preferred Stock, 4.85% Series. Said Certificate, pursuant to
Section 11 of the Stock Corporation Law, is hereinafter sometimes
referred to as the "1958 162
Certificate".
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV, under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"RESOLVED, that consent be and it hereby is given to the issue
by the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III. The certificate of incorporation, as heretofore amended,
is hereby further amended by the addition of the following
provisions stating the number, designation, relative rights,
preferences, and limitations of a fourth series of Preferred Stock,
to consist of 250,000 shares of the authorized 1,800,000 shares of
Preferred Stock of the Corporation, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph (4D) (of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and by
the 1954 Certificate, the January 1957 Certificate, the May 1957
Certificate and the 1958 Certificate) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 6.10%
Series
(4D) The number, designations, relative rights, preferences
and limitations of the fourth series of the Preferred Stock of the
Corporation as fixed by the Board of Directors are as follows:
163
(A) The number of shares to constitute the fourth series shall
be 250,000 shares and the designation of such series shall be
"Preferred Stock, 6.10% Series";
(B) The dividend rate thereof shall be six and ten
one-hundredths per cent (6.10%) per annum. The dividends on each
share of the Preferred Stock, 6.10% Series, shall be cumulative
from the date of the original issue thereof;
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment, the Preferred Stock, 6.10%
Series, shall have no voting rights whatsoever;
(D) The sum per share payable upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $107 per
share through August 31, 1974; $105 per share thereafter through
August 31, 1977; $103 per share thereafter through August 31, 1982;
and $101 per share thereafter, in each case plus an amount equal to
the dividends accrued and unpaid on such share, whether or not
earned or declared;
(E) The sum per share payable upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 6.10% Series, shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $107 per share through August 31, 1974; $105
per share thereafter through August 31, 1977; $103 per share
thereafter through August 31, 1982; and $101 per share thereafter,
in each case plus an amount equal to the dividends accrued and
unpaid thereon to the date fixed for redemption, whether or not
earned or declared; provided, however, the Board of Directors of
the Corporation shall not prior to September 1, 1974 exercise its
option to redeem any shares of the Preferred Stock, 6.10% Series,
as a part of or in 164
anticipation of any refunding operation by the application,
directly or indirectly, of borrowed funds or the proceeds of issue
of any shares of Preferred Stock or any stock ranking prior to or
on a parity with the Preferred Stock if such borrowed funds have an
interest rate or cost to the Corporation (calculated in accordance
with accepted financial practice), or such shares have a dividend
rate or cost to the Corporation so calculated, less than the
dividend rate per annum of the Preferred Stock, 6.10% Series;
(G) The shares of the Preferred Stock, 6.10% Series, shall not
be convertible into or exchangeable for other securities of the
Corporation;
(H) There shall be no sinking fund with respect to the shares
of the Preferred Stock, 6.10% Series; and
(I) The shares of the Preferred Stock, 6.10% Series, shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV. The amendments of the certificate of incorporation
effected by this Certificate were authorized by action of the Board
of Directors of the Corporation, pursuant to Section 502 of the
Business Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 22nd day of August, 1967.
LAUMAN MARTIN
Lauman Martin, Vice President
JOHN G. BENACK
John G. Benack, Secretary
STATE OF NEW YORK )
165
COUNTY OF NEW YORK) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says that he is a
Vice President of Niagara Mohawk Power Corporation, the corporation
named in and described in the foregoing Certificate, that he has
read and executed the foregoing Certificate and knows the contents
thereof and that the statements contained therein are true.
LAUMAN MARTIN
Sworn to before me this
22nd day of August, 1967.
A. READING VAN DOREN, JR.
A. READING VAN DOREN, JR.
Notary Public State of New York
No. 31-4074138
Qualified in New York County
Commission Expires March 30, 1969
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y.
August 24, 1967
CASE 24455--Petition of Niagara Mohawk Power Corporation for
authority to issue $40 million of General Mortgage Bonds, %
Series, due August 1, 1997, and 250,000 shares of $100 par value
preferred stock, and to amend its Certificate of Incorporation.
* * *
The Public Service Commission hereby consents to and approves
this CERTIFICATE of AMENDMENT OF CERTIFICATE OF INCORPORATION of
NIAGARA MOHAWK POWER CORPORATION Under Section 805 of the Business
166
Corporation Law, executed August 22, 1967, in accordance with the
order of the Public Service Commission dated August 2, 1967.
By the Commission
SAMUEL R. MADISON
Secretary
CERTIFICATE OF MERGER
of
ADAMS ELECTRIC LIGHT COMPANY
with
NIAGARA MOHAWK POWER CORPORATION
Dated: August 25, 1967
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED AUG 25 1967
TAX $ NONE
FILING FEE $30
JOHN P. LOMENZO
Secretary of State
167
By M.H.
CERTIFICATE OF MERGER
of
ADAMS ELECTRIC LIGHT COMPANY
into
NIAGARA MOHAWK POWER CORPORATION
Under Section 905 of the
Business Corporation Law
__________
Pursuant to the provisions of Section 905 of the Business
Corporation Law, the undersigned, being a Vice President and the
Secretary of Niagara Mohawk Power Corporation, hereby certify:
1. The name of the subsidiary corporation to be merged is
Adams Electric Light Company.
The name of the surviving corporation is Niagara Mohawk Power
Corporation. It was originally incorporated under the name of
Niagara Hudson Public Service Corporation.
2. The designation and number of outstanding shares of each
class of the subsidiary corporation to be merged is 2,316 shares of
no par value Common Capital Stock, all of which are owned by the
surviving corporation.
3. The effective date of the merger shall be the date of
filing of this certificate of merger by the Department of State.
168
4. There is no provision for the abandonment of the plan of
merger.
5. The date when the certificate of incorporation of Adams
Electric Light Company was filed by the Secretary of State was May
28, 1912. The date when the certificate of consolidation forming
Niagara Hudson Public Service Corporation was filed by the
Department of State was July 31, 1937.
6. The surviving corporation owns all of the shares of the
subsidiary corporation to be merged.
7. The plan of merger to be effected by the filing of this
certificate has been adopted by the vote of a majority of directors
of Niagara Mohawk Power Corporation present at a meeting of the
Board of said Corporation at which a quorum was present.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 25th day of August, 1967.
LAUMAN MARTIN
LAUMAN MARTIN, Vice President,
NIAGARA MOHAWK POWER CORPORATION
JOHN G. BENACK
JOHN G. BENACK, Secretary,
NIAGARA MOHAWK POWER CORPORATION
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says, that he is a
Vice President of NIAGARA MOHAWK POWER CORPORATION, the corporation
named in and described in the foregoing certificate. That he has
read and executed the foregoing certificate and knows the contents
169
thereof, and that the statements contained therein are true.
LAUMAN MARTIN
Sworn to before me this
25th day of August, 1967.
MARCELLA C. EICHENLAUB
MARCELLA C. EICHENLAUB
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1089575
My Commission Expires March 30, 1969
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., August 25, 1967
CASE 24401 -- Petition of Niagara Mohawk Power Corporation for
authority to acquire all of the capital stock of Adams Electric
Light Company, to issue 39,372 shares of petitioner's $8 par value
common stock in exchange therefor, and to merge Adams Electric
Light Company with petitioner.
* * *
The Public Service Commission hereby consents to and approves
this Certificate of Merger of Adams Electric Light Company into
Niagara Mohawk Power Corporation Under Section 905 of the Business
Corporation Law, which merger is evidenced by the Certificate of
Merger executed August 25, 1967, in accordance with the order of
this Commission dated August 2, 1967.
By the Commission
170
SAMUEL R. MADISON
Secretary
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Dated: May 8, 1968
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED AUG 19 1968
TAX $50,000
FILING FEE $30
JOHN P LOMENZO
Secretary of State
By N. B.
171
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Vice President and the
Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is
hereby further amended to effect changes authorized by Section
801(b) of the Business corporation Law, to wit: to increase the
aggregate number 172
of shares of Preferred Stock of the par value of $100 each which
the Corporation shall have the authority to issue by an additional
1,000,000 shares of such Preferred Stock, so that the authorized
shares of capital stock shall consist of 2,800,000 shares of
Preferred Stock with a par value of $100 each and 35,000,000 shares
of Common Stock with a par value of $8 each.
IV
The Certificate of Incorporation of the Corporation, as
amended, is hereby amended so that Parts A and C of Article IV
setting forth the number of authorized shares and the number of
shares of each class, as so amended, read as follows:
"IV.A. The total number of shares which the Corporation may
have is 37,800,000, of which 2,800,000 are to have a par value of
$100 each and 35,000,000 are to have a par value of $8 each."
"C. The shares of the Corporation are to be classified as
follows:
2,800,000 shares are to be Preferred Stock with a par value of
$100 each; and 35,000,000 shares are to be Common Stock with a par
value of $8 each."
V
The stated capital of the Corporation will not be affected by
this Amendment to the Certificate of Incorporation of the
Corporation.
VI
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of a majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which such votes were cast with relation to the
173
proceedings provided for in this Amendment and neither the
Certificate of Incorporation nor any other certificate filed
pursuant to law requires a larger proportion of votes. Such votes
were cast in person or by proxy at a stockholders' meeting duly
held at the offices of the Corporation at No. 300 Erie Boulevard
West, in the City of Syracuse, New York, on the seventh day of May,
1968, at 11 o'clock A.M., pursuant to Section 605 of the Business
Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 8th day of May, 1968.
LAUMAN MARTIN /s/
Lauman Martin, Vice President
[CORPORATE SEAL]
JOHN G. BENACK /s/
John G. Benack, Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
Lauman Martin, being duly sworn, deposes and says, that he is a
Vice President of Niagara Mohawk Power Corporation, the corporation
named in and described in the foregoing certificate. That he has
read and executed the foregoing certificate and knows the contents
thereof, and that the statements contained therein are true.
LAUMAN MARTIN /s/
Sworn to before me this
8th day of May, 1968
PHYLLIS FANNING /s/
PHYLLIS FANNING
Notary Public in the State of New York
174
qualified in Onon. Co. No. 34-1158700
My Commission Expires March 30, 1969
[NOTARIAL SEAL]
CERTIFICATE OF MERGER
of
CANTON ELECTRIC LIGHT AND POWER COMPANY
into
NIAGARA MOHAWK POWER CORPORATION
Under Section 905 of the
Business Corporation Law
__________
Pursuant to the provisions of Section 905 of the Business
Corporation Law, the undersigned, Senior Vice President and
Secretary, respectively, of Niagara Mohawk Power Corporation,
hereby certify:
1. The name of the subsidiary corporation to be merged is
Canton Electric Light and Power Company. The name of the
surviving corporation is Niagara Mohawk Power Corporation. It was
originally incorporated under the name of Niagara Hudson Public
Service Corporation.
2. The designation and number of outstanding shares of each
class of the subsidiary corporation to be merged is 2,280 shares of
$100 par value Common Stock, all of which are owned by the
surviving 175
corporation.
3. The effective date of the merger shall be the date of
filing this certificate of merger by the Department of State.
4. There is no provision for the abandonment of the plan of
merger.
5. The certificate of incorporation of Canton Electric Light
and Power Company was filed by the Secretary of State on February
23, 1887.
The date when the certificate of consolidation forming Niagara
Hudson Public Service Corporation was filed by the Department of
State was July 31, 1937.
6. The surviving corporation owns all of the shares of the
subsidiary corporation to be merged.
7. The plan of merger to be effected by the filing of this
certificate has been adopted by the vote of a majority of directors
of Niagara Mohawk Power Corporation present at a meeting of the
Board of said Corporation at which a quorum was present.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 27th day of February, 1969.
Lauman Martin, Senior Vice President,
Niagara Mohawk Power Corporation
John G. Benack, Secretary,
Niagara Mohawk Power Corporation
176
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says: that he is a
Senior Vice President of NIAGARA MOHAWK POWER CORPORATION, the
Corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and
knows the contents thereof, and that the statements contained
therein are true.
_______________
Lauman Martin
Sworn to before me this 27th
day of February, 1969.
_______________
Herman B. Noll
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., February 27, 1969
CASE 24984 - Petition of Niagara Mohawk Power Corporation for
authority to acquire all the common capital stock of Canton
Electric Light and Power Company, to issue stock in exchange
therefor, and to merge Canton Electric Light and Power Company.
__________
177
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF MERGER of CANTON ELECTRIC LIGHT AND POWER
COMPANY into NIAGARA MOHAWK POWER CORPORATION Under Section 905 of
the Business Corporation Law, which Merger is evidenced by this
Certificate of Merger executed February 27, 1969, in accordance
with the order of this Commission dated January 21, 1969.
By the Commission
(SEAL)
SAMUEL R. MADISON
Secretary
State of New York )
Department of State ) ss.:
I Certify That I have compared the preceding copy with the
original Certificate of Merger of Canton Electric Light and Power
Company
with
Niagara Mohawk Power Corporation,
filed in this department on the 27th day of February, 1969, and
that such copy is a correct transcript therefrom and of the whole
of such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this twenty-seventh day of February,
one thousand nine hundred sixty-nine.
178
(SEAL)
JOHN P. LOMENZO
Secretary of State
(Conformed)
CERTIFICATE OF MERGER
of
ELLICOTTVILLE ELECTRIC LIGHT COMPANY
into
NIAGARA MOHAWK POWER CORPORATION
Under Section 905 of the
Business Corporation Law
__________
Pursuant to the provisions of Section 905 of the Business
Corporation Law, the undersigned, Senior Vice President and
Secretary, respectively, of Niagara Mohawk Power Corporation,
hereby certify:
1. The name of the subsidiary corporation to be merged is
Ellicottville Electric Light Company.
The name of the surviving corporation is Niagara Mohawk Power
Corporation. It was originally incorporated under the name of
Niagara Hudson Public Service Corporation.
2. The designation and number of outstanding shares of each
class of the subsidiary corporation to be merged is 50 shares of
$100 179
par value Common Stock, all of which are owned by the surviving
corporation.
3. The effective date of the merger shall be the date of
filing of this certificate of merger by the Department of State.
4. There is no provision for the abandonment of the plan of
merger.
5. The certificate of incorporation of Ellicottville Electric
Light Company was filed by the Secretary of State on May 18, 1906.
The date when the certificate of consolidation forming Niagara
Hudson Public Service Corporation was filed by the Department of
State was July 31, 1937.
6. The surviving corporation owns all of the shares of the
subsidiary corporation to be merged.
7. The plan of merger to be effected by the filing of this
certificate has been adopted by the vote of a majority of directors
of Niagara Mohawk Power Corporation present at a meeting of the
Board of said corporation at which a quorum was present.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 23rd day of May, 1969.
Lauman Martin, Senior Vice President,
Niagara Mohawk Power Corporation
John G. Benack, Secretary,
Niagara Mohawk Power Corporation
180
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says: that he is a
Senior Vice President of NIAGARA MOHAWK POWER CORPORATION, the
Corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and
knows the contents thereof, and that the statements contained
therein are true.
_______________
Lauman Martin
Sworn to before me this
23rd day of May, 1969.
____________________
Edward P. Gueth, Jr.
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N. Y., May 23, 1969
CASE 25021 - Petition of Niagara Mohawk Power Corporation for
authority to acquire all the capital stock of Ellicottville
Electric Light Company, to issue common stock in exchange therefor
and to merge the latter company.
181
__________
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF MERGER of ELLICOTTVILLE ELECTRIC LIGHT COMPANY
into NIAGARA MOHAWK POWER CORPORATION Under Section 905 of the
Business Corporation Law, which Merger is evidenced by this
Certificate of Merger executed May 23, 1969, in accordance with the
order of this Commission dated February 18, 1969.
By the Commission
SAMUEL R. MADISON
(SEAL)Secretary
State of New York )
Department of State ) ss.:
I Certify That I have compared the preceding copy with the
original Certificate of Merger of Ellicottville Electric Light
Company
with
Niagara Mohawk Power Corporation,
filed in this department on the 23rd day of May, 1969, and that
such copy is a correct transcript therefrom and of the whole of
such original.
WITNESS my hand and the official seal of the Department of
State at the City of Albany, this twenty-third day of May, one
thousand nine hundred sixty-nine.
JOHN P. LOMENZO
182
(SEAL) Secretary of State
[CONFORMED]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Dated: August 1, 1969
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED SEP 22 1969
Tax $50,000--
Filing Fee $30--
JOHN P. LOMENZO
183
Secretary of State
By M. H.
783618
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
Pursuant to the provisions of Section 805 of the Business
Corporation Law, the undersigned, being a Vice President and the
Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed by the Department of State on July 31, 1937.
III
184
The Certificate of Incorporation as heretofore amended is
hereby further amended to effect changes authorized by Section
801(b) of the Business Corporation Law, to wit: to increase the
aggregate number of shares of Preferred Stock which the Corporation
shall have the authority to issue by an additional 1,000,000 shares
of a new class of Preference Stock with a par value of $100 each,
so that the authorized shares of capital stock shall consist of
2,800,000 shares of Preferred Stock with a par value of $100 each,
1,000,000 shares of Preference Stock with a par value of $100 each,
and 35,000,000 shares of Common Stock with a par value of $8 each,
and to set forth the relative rights, preferences and limitations
of the new class of Preference Stock.
IV
The Certificate of Incorporation of the Corporation, as
amended, is hereby amended so that Parts A and C of Article IV
setting forth the number of authorized shares and the number of
shares of each class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may
have is 38,800,000 of which, 3,800,000 are to have a par value of
$100 each and 35,000,000 are to have a par value of $8 each."
"C. The shares of the Corporation are to be classified as
follows:
$2,800,000 shares are to be Preferred Stock with a par value of
$100 each; 1,000,000 shares are to be Preference Stock with a par
value of $100 each; and 35,000,000 shares are to be Common Stock
with a par value of $8 each."
V
The Certificate of Incorporation of the Corporation, as
amended, is hereby amended by inserting the following Paragraphs
(6) and (7) setting forth the relative rights, preferences and
limitations of the new class of Preference Stock immediately
following Paragraph 185
(5) of Part D of Article IV of the Certificate of Incorporation, as
amended, and to renumber Paragraphs (6), (7) and (8) of Part D of
said Article IV as Paragraphs (8), (9) and (10), respectively, so
that Paragraphs (6) through (10) of Part D of said Article IV, as
so amended and renumbered, read follows:
"PREFERENCE STOCK
"(6) The shares of the Preference Stock may be issued from
time to time in series. The Board of Directors is authorized to
fix from time to time before issuance the designations, relative
rights, preferences and limitations of the shares of each series of
the Preference Stock, respectively, except for such provisions as
are applicable to all shares of the Preference Stock irrespective
of series, and except that until the Preferred Stock shall have
been redeemed in accordance with its terms, the designations,
relative rights, preferences and limitations granted to or imposed
upon any series of the Preference Stock shall have no effect
whatever on the Preferred Stock, which shall retain its present
rights and shall be and remain superior in all respects to the
Preference Stock.
"Subject to the limitations hereinafter stated, the shares of
the Preference Stock may be issued in any such one or more series
as may be fixed from time to time by the Board of Directors, each
of such series to be distinctively designated. All shares of any
one series of Preference Stock shall be alike in every particular,
and the shares of all series shall rank equally and be identical in
all respects, except in respect to the matters set forth in the
following paragraphs numbered (A) to (H) inclusive:
(A) The designation of series;
(B) The dividend rate;
186
(C) The date from which dividends shall be cumulative and the
dates on which dividends, if declared, shall be payable;
(D) The sum payable per share upon the voluntary dissolution,
liquidation or winding up of the Corporation and the sum payable
per share upon the involuntary dissolution, liquidation or winding
up of the Corporation, which sums, in each and every case, shall be
a stated amount (not less than $100) with respect to dissolution,
liquidation or winding up during any specified period or periods,
plus an amount equal to the dividends accrued and unpaid thereon,
whether or not earned or declared, and payable out of the net
assets of the Corporation, whether capital or surplus;
(E) Whether or not the shares of each series shall be
redeemable, and if made redeemable, the redemption price or prices
per share, which prices, in each and every case, shall be a stated
amount with respect to redemption during any specified period or
periods, plus an amount equal to the dividends accrued and unpaid
thereon to the date fixed for redemption, whether or not earned or
declared;
(F) Whether or not the shares of each series shall be made
convertible into or exchangeable for other securities of the
Corporation, and if made convertible or exchangeable, the price or
prices or the rate or rates of conversion or exchange, and the
adjustments, if any, at which such conversion or exchange may be
made;
(G) Whether or not there shall be a sinking fund, or other
fund analogous thereto, with respect to the shares of each series
and the terms and provisions of such fund, if any; and
(H) Any other relative, participating, optional or other
rights, preferences or limitations of the shares of each series,
not inconsistent with the provisions applicable to all shares of
the Preference Stock irrespective of series.
187
"PROVISIONS APPLICABLE TO ALL SERIES OF PREFERENCE STOCK
"(7) The following provisions shall apply to all shares of the
Preference Stock irrespective of series:
"(A) The holders of the Preference Stock of each series shall
be entitled to receive, but only when and as declared by the Board
of Directors, dividends at the rate fixed for such series and no
more.
Such dividends shall be payable on such dividend dates as may
be fixed for said series and shall be cumulative from such date as
may be fixed. All dividends accrued on the Preference Stock shall
be fully paid, or declared and set apart for payment, before any
dividends on the Common Stock shall be paid or set apart for
payment so that if, for all prior dividend periods and the then
current dividend period, dividends on all outstanding shares of
Preference Stock at the rates fixed for the respective series shall
not have been paid, or declared and set apart for payment, the
deficiency shall be fully paid, or declared and set apart for
payment, before any dividends shall be paid or set apart for
payment on the Common Stock. If the stated dividends on the
Preference Stock are not paid in full, the shares of all series of
the Preference Stock shall share ratably in the payment of
dividends including accumulations, if any, in accordance with the
sums which would be payable on such shares if all dividends were
declared and paid in full. Accruals of dividends shall not bear
interest.
"(B) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
Preference Stock of each and every series then outstanding shall be
entitled to receive out of the net assets of the Corporation,
whether capital or surplus, the sums per share fixed for the shares
of the respective series and payable upon such dissolution,
liquidation or winding up, plus, in the case of each share, an
amount equal to the dividends accrued and unpaid thereon, whether
or not earned or declared, before any distribution of the assets of
the Corporation shall be made to the holders of the Common Stock.
188
"If the assets distributable on such dissolution, liquidation
or winding up shall be insufficient to permit the payment to the
holders of the Preference Stock of the full amounts to which they
respectively are entitled as aforesaid, then said assets shall be
distributed ratably among the holders of the respective series of
Preference Stock in proportion to the amounts which would be
payable on such dissolution, liquidation or winding up if all such
amounts were paid in full in preference and priority over the
shares of the Common Stock.
"After payment to the holders of the Preference Stock of the
full amounts to which they respectively are entitled as aforesaid,
the holders of the Preference Stock, as such, shall have no right
or claim to any of the remaining assets of the Corporation.
"The sale, conveyance, exchange or transfer of all or
substantially all of the property of the Corporation, or the merger
or consolidation into or with any other corporation, shall not be
deemed a dissolution, liquidation or winding up for the purposes
hereof.
"(C) At the option of the Board of Directors of the
Corporation, the Corporation may redeem any series of Preference
Stock which has been made redeemable, either as a whole or in
part, at the redemption price determined for such series; provided,
however, that not less than thirty nor more than sixty days
previous to the date fixed for redemption a notice of the time and
place thereof shall be given the holders of record of the
Preference Stock so to be redeemed, by mail or publication, in such
manner as may be prescribed by resolution of the Board of
Directors; and, provided, further, that in every case of redemption
of less than all of the outstanding shares of any one series of
Preference Stock, such redemption shall be made pro rata, or the
shares of such series to be redeemed shall be chosen by lot in such
manner as may be prescribed by resolution of the Board of
Directors. At any time after notice of redemption has been given
as aforesaid to the holders of stock so to be redeemed, or after
giving 189
to the bank or trust company hereinafter referred to irrevocable
authorization to give such notice, the Corporation may deposit the
aggregate redemption price with a bank or trust company having its
principal office in The City of New York, State of New York, in
trust for the benefit of the holders of the shares to be redeemed,
payable on the date fixed for redemption as aforesaid and in the
amounts aforesaid to the respective orders of the holders of the
shares to be redeemed, upon endorsement to the Corporation or
otherwise, as may be required, and upon surrender of the
certificates for such shares. Upon deposit of said money as
aforesaid, or, if no such deposit is made, upon the date fixed for
redemption (unless the Corporation defaults in making payment of
the redemption price as set forth in such notice), such holders
shall cease to be stockholders with respect to said shares, and
from and after the making of said deposit, or, if no such deposit
is made, from and after the date fixed for redemption (the
Corporation not having defaulted in making payment of the
redemption price as set forth in such notice), said shares shall
not be deemed to be outstanding and such holders shall have no
interest in or claim against the Corporation with respect to said
shares, but shall be entitled only to receive said moneys on the
date fixed for redemption as aforesaid from said bank or trust
company, or from the Corporation, as the case may be, without
interest thereon, upon endorsement to the Corporation or otherwise,
as may be required, and upon surrender of the certificates for such
shares, as aforesaid.
"In case the holder of any such Preference Stock which shall
have been called for redemption shall not, within six years after
said deposit, claim the amount deposited as above stated for the
redemption thereof, such bank or trust company shall upon demand
pay over to the Corporation such unclaimed amount and such bank or
trust company shall thereupon be relieved from all responsibility
to such holder, and such holder shall look only to the Corporation
for the payment thereof.
"Nothing herein contained shall limit any legal right of the
Corporation to purchase or otherwise acquire any shares of the
Preference Stock.
190
"(D) So long as any shares of the Preference Stock of any
series are outstanding, the Corporation shall not, without the
consent given either in writing or by vote at a meeting called for
that purpose, of the holders of at least two-thirds of the total
number of shares of the Preference Stock of all series then
outstanding:
(a) Create or authorize any stock ranking prior to the
Preference Stock with respect to dividends or upon the dissolution,
liquidation, or winding up of the Corporation, whether voluntary or
involuntary, or create or authorize any obligation or security
convertible into shares of any such stock;
(b) Amend, alter, change or repeal any of the terms of the
Preference Stock or of any series of the Preference Stock then
outstanding so as to affect the holders of such shares adversely;
provided, however, that if any amendment, alteration, change or
repeal would affect adversely the holders of one or more, but not
all, of the series of the Preference Stock at the time outstanding,
only such consent of the holders of two-thirds of the total number
of shares of all series so affected shall be required.
"(E) So long as any shares of the Preference Stock of any
series are outstanding, the Corporation shall not without an
authorizing vote, at a meeting called for that purpose, of the
holders of a majority of the shares of the Preference Stock of all
series then outstanding:
(a) Increase the total authorized amount of the Preference
Stock or create any class of stock ranking on a parity with the
Preference Stock as to dividends or in liquidation;
(b) Issue any shares of Preference Stock entitled to payment
of an amount per share upon involuntary dissolution, liquidation,
or winding up of the Corporation in excess of $100 per share plus
an amount equal to the dividends accrued and unpaid thereon,
whether or not earned or declared;
(c) Merge or consolidate with or into any other corporation,
191
unless such merger or consolidation, or the issuance and assumption
of all securities to be issued or assumed in connection therewith
shall have been ordered, approved, or permitted by a regulatory
authority of the State of New York having jurisdiction in the
premises; provided that the provisions of this clause (c) shall not
apply to a purchase or other acquisition by the Corporation of
franchises or assets of another corporation in any manner which
does not involve a merger or consolidation.
"(F) No holder of the Preference Stock of the Corporation
shall have any preemptive right to purchase or subscribe for any
part of the unissued stock of the Corporation or of any stock of
the Corporation to be issued by reason of any increase of the
authorized capital stock of the Corporation, or to purchase or
subscribe for any bonds, certificates of indebtedness, debentures
or other securities convertible into or carrying options or
warrants to purchase stock or other securities of the Corporation
or to purchase or subscribe for any stock of the Corporation
purchased by the Corporation or by its nominee or nominees, or to
have any other preemptive rights as now or hereafter defined by the
laws of the State of New York.
"(G) Except as and to the extent otherwise provided by this
Certificate and the laws of the State of New York, the Preference
Stock shall not entitle any holder thereof to vote at any meeting
of stockholders or election of the Corporation, or otherwise to
participate in any action taken by the Corporation or the
stockholders thereof.
"Whenever dividends payable on the Preference Stock shall be in
default in an aggregate amount equivalent to six full quarterly
dividends on all shares of such Preference Stock then outstanding,
the holders of shares of the Preference Stock, voting separately as
a class and regardless of series, shall be entitled to elect two
members of the Board of Directors, as then constituted, and the
holders of the Common Stock (and the holders of the Preferred Stock
if they are then entitled to elect directors) shall be entitled to
elect the remainder of the Board of Directors as then constituted.
The right of the holders of the Preference Stock, voting separately
192
as a class, to elect members of the Board of Directors as aforesaid
shall continue until such time as all dividends accumulated on the
Preference Stock shall have been paid in full, or declared and set
apart for payment (and such dividends shall be paid, or declared
and set apart for payment, out of assets available therefor as soon
as is reasonably practicable), at which time such right of the
holders of shares of the Preference Stock to elect members of the
Board of Directors as aforesaid shall terminate, subject to
revesting in the event of each and every subsequent default of the
character above named. Upon termination of the right of the
holders of shares of the Preference Stock to elect members of the
Board of Directors, the terms of office of all persons who may have
been elected directors of the Corporation by vote of the holders of
the Preference Stock shall forthwith terminate.
"Whenever the right to elect directors shall accrue to the
Preference Stock as herein provided, (a) a meeting of stockholders
for the election of a new Board of Directors shall be held and, if
not otherwise called, shall be promptly called by the Secretary of
the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the outstanding Preference
Stock, and (b) upon the election at such meeting the terms of
office of those existing directors elected by the holders of Common
Stock shall terminate.
"At any meeting held for the purpose of electing directors when
the holders of the Preference Stock shall be entitled to elect
members of the Board of Directors as aforesaid, the presence in
person or by proxy of the holders of a majority of the total number
of outstanding shares of Common Stock of the Corporation shall be
required to constitute a quorum of such class for the election of
directors by such class, and the presence in person or by proxy of
the holders of a majority of the total number of outstanding shares
of the Preference Stock shall be required to constitute a quorum of
such class for the election of directors by such class; provided,
however, that a majority of those holders of the stock of either
such classes who are present in person or by proxy shall have power
to adjourn such meeting for the election of directors by such class
from 193
time to time without notice other than announcement at the meeting.
At such meeting the Preference Stock shall be entitled to elect two
directors, and the holders of Common Stock shall be entitled to
elect the remaining directors, provided, however, that any persons
occupying positions who were elected by the holders of Preferred
Stock shall not thereby be effected. The terms of office of the
directors so elected by the holders of Preference Stock and by the
holders of Common Stock shall expire at the time the terms of
office of directors would normally expire, and upon any such normal
expiration of such terms of office of directors would normally
expire, and upon any such normal expiration of such terms of
office, if the holders of Preference Stock continue to be entitled
to elect directors, they shall be entitled to elect a successor
director; subject, however, to termination of the office of any
director elected by holders of Preference Stock as provided in the
second preceding paragraph hereof.
"In case of any vacancy in the office of a director occurring
among the directors elected by the holders of the Preference Stock
as aforesaid, or of a successor to any such director, the remaining
director so elected may elect a successor to hold office for the
unexpired term of the director whose place shall be vacant, and
such successor shall be deemed to have been elected by the holders
of the Preference Stock as aforesaid. Likewise, in case of any
vacancy in the office of a director occurring (at a time when the
holders of the Preference Stock shall be entitled to elect members
of the Board of Directors as aforesaid) among the directors elected
by the holders of the Common Stock of the Corporation, or of a
successor to any such director, the remaining directors so elected
may elect, by affirmative vote of a majority thereof, or by the
affirmative vote of the remaining director so elected if there be
but one, a successor or successors to hold office for the unexpired
term of the director or directors whose place or places shall be
vacant, and such successor or successors shall be deemed to have
been elected by the holders of the Common Stock of the Corporation.
"Nothing herein pertaining to the rights of the holders of
Preference Stock to elect directors shall be deemed to affect the
194
rights of the holders of Preferred Stock to elect directors upon
default in the payment of dividends on that stock.
"Except as herein otherwise expressly provided and except when
some mandatory provision of law shall be controlling and, as
regards the special rights of any series of the Preference Stock,
as provided in the resolutions creating such series, whenever
shares of two or more series of the Preference Stock are
outstanding, no particular series of the Preference Stock shall be
entitled to vote as a separate series on any matter and all shares
of the Preference Stock of all series shall be deemed to constitute
but one class for any purpose for which a vote of the stockholders
of the Corporation by classes may now or hereafter be required.
"COMMON STOCK
"(8) The following provisions shall apply to all shares of the
Common Stock:
"(A) Out of the assets of the Corporation available for
dividends remaining after full dividends on all stock having
priority as to dividends over the Common Stock shall have been paid
or declared and set apart for payment and after making such
provision, if any, as the Board of Directors may deem necessary or
advisable for working capital and reserves or otherwise, then, and
not otherwise, dividends may be paid upon the Common Stock, but
only when and as determined by the Board of Directors.
"(B) The holders of the Common Stock shall have preemptive
rights as the same are defined in Section 39 of the Stock
Corporation Law, except that shares or other securities offered for
sale shall not be subject to such preemptive rights (1) if not so
subject under said Section 39 or (2) if they are the subject of a
public offering or of an offering to or through underwriters or
investment bankers who shall have agreed promptly to make a public
offering of such shares.
195
"(C) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, after there shall
have been paid to or set apart for the holders of all stock having
priority over the Common Stock the full preferential amounts to
which they are respectively entitled, the holders of the Common
Stock shall be entitled to receive pro rata all of the remaining
assets of the Corporation available for distribution to its
stockholders. The sale, conveyance, exchange or transfer of all or
substantially all of the property of the Corporation, or the merger
or consolidation into or with any other corporation, shall not be
deemed a dissolution, liquidation or winding up for the purposes of
this subdivision (C).
"The Board of Directors, by vote of a majority of the members
thereof, may distribute in kind to the holders of the Common Stock
pro rata such remaining assets of the Corporation, or may sell,
transfer or otherwise dispose of the remaining assets of the
Corporation, or any part thereof, to any other corporation or to
any person, or any part thereof, to any other corporation or to any
person, and receive payment therefor wholly or partly in cash or in
stock or in obligations of such corporation or person, and may
sell, transfer or otherwise dispose of all or any of such
consideration received therefor and distribute the proceeds thereof
to the holders of the Common Stock pro rata.
"(D) The respective shares of the Common Stock shall entitle
the holders thereof to one vote for each share of such Common
Stock held by them, respectively, except as in this subdivision (D)
otherwise expressly provided.
"At all meetings of stockholders held for the purpose of
electing directors, each holder of shares of the Common Stock
shall be entitled to as many votes as shall equal the number of
votes which (except for this provision as to cumulative voting) he
would be entitled to cast for the election of directors with
respect to his shares of stock multiplied by the number of
directors to be elected by the holders of shares of the Common
Stock, and he may cast all of such votes for a single director or
may distribute them among the number to be voted for, or any two or
more of them, as he may see 196
fit.
"SCRIP CERTIFICATES
"(9) Whenever any exchange or conversion of shares of stock of
the Corporation of any class or series for or into shares of
another class or series, or any exchange of shares of stock of the
Corporation for shares of stock of another corporation pursuant to
any plan of exchange or reorganization approved and accepted by the
Board of Directors of the Corporation, shall result in the creation
of interests in fractions of shares of stock of the Corporation of
any class or series, the Corporation shall not be required to issue
certificates representing such fractions of shares of stock, but a
scrip certificate or certificates shall be issued in respect of
such fractional interests in shares. Such scrip certificates will
entitle the holders thereof, upon such terms and under such
conditions as may be set by the Board of Directors of the
Corporation, upon the surrender of scrip certificates aggregating
one or more full shares of stock of the respective class or series,
to receive, on or before a date to be fixed by the Board of
Directors of the Corporation, a certificate or certificates
representing such full shares. The scrip certificates will provide
that, as soon as practicable after such dates fixed by the Board of
Directors of the Corporation, any shares of stock represented by
outstanding scrip certificates shall be sold and the proceeds held
without accountability for interest for the account of the holders
of scrip certificates until a date fixed by the Board of Directors
and to be not more than two years later, after which latter date
all unsurrendered scrip certificates of the Corporation shall
become void.
"Scrip certificates shall be non-voting and non-dividend
bearing and shall not entitle the holders thereof to any rights as
stockholders of the Corporation.
"QUORUM OF STOCKHOLDERS
"(10) At all meetings of the stockholders of the Corporation a
197
quorum must be present for the transaction of business, and except
as otherwise provided under the heading 'General Provisions
Applicable to All Series of Preferred Stock' in respect of meetings
of the stockholders held for the election of directors by the vote
of a class or classes of stock, a quorum shall consist of the
holders of record of not less than a majority of the outstanding
shares of the Corporation entitled to vote, present either in
person or by proxy."
VI
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of a majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which such votes were cast with relation to the
proceedings provided for in this Amendment and neither the
Certificate of Incorporation nor any other certificate filed
pursuant to law requires a larger proportion of votes. Such votes
were cast in person or by proxy at a stockholders' meeting duly
held at the offices of the Corporation at No. 300 Erie Boulevard
West, in the City of Syracuse, New York, on the 6th day of May,
1969, at 11 o'clock A.M., pursuant to Section 605 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 1st day of August, 1969.
LAUMAN MARTIN /s/
Lauman Martin, Vice President
[CORPORATE SEAL]
JOHN G. BENACK /s/
John G. Benack, Secretary
198
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says, that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and knows
the contents thereof, and that the statements contained therein are
true.
LAUMAN MARTIN /s/
Sworn to before me this
1st day of August, 1969.
PHYLLIS FANNING /s/
PHYLLIS FANNING
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-1158700
My Commission Expires March 30, 1971
[NOTARIAL SEAL]
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., September 22, 1969
199
CASE 25191--Petition of Niagara Mohawk Power Corporation for
approval of an amendment of its Certificate of Incorporation to
authorize one million shares of $100 par value preference stock.
* * * * *
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF AMENDMENT of the CERTIFICATE OF INCORPORATION
of NIAGARA MOHAWK POWER CORPORATION Under Section 805 of the
Business Corporation Law, executed August 1, 1969, in accordance
with the order of the Public Service Commission dated May 6, 1969.
By the Commission,
SAMUEL R. MADISON
Secretary
[SEAL]
STATE OF NEW YORK )
DEPARTMENT OF STATE) ss.:
I hereby certify that I have compared the annexed copy with the
original document filed by the Department of State and that the
same is a correct transcript of said original.
WITNESS my hand and seal of the Department of State on Sep 22
1969
JOHN P. LOMENZO
Secretary of State
[SEAL]
200
(CONFORMED)
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Dated: May 10, 1971
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED MAY 12, 1971
TAX $40,000
FILING FEE $30
JOHN P. LOMENZO
Secretary of State
By M. R.
201
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
the Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation. It was originally incorporated under the name of
Niagara Hudson Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed by the Department of State on July 31, 1937.
III
202
The Certificate of Incorporation as heretofore amended is
hereby further amended to effect changes authorized by Section
801(b) of the Business Corporation Law, to wit: to increase the
aggregate number of shares of Common Stock of the par value of $8
each which the Corporation shall have the authority to issue by an
additional 10,000,000 shares of such Common Stock, so that the
authorized shares of capital stock shall consist of 2,800,000
shares of Preferred Stock with a par value of $100 each, 1,000,000
shares of Preference Stock with a par value of $100 each and
45,000,000 shares of Common Stock with a par value of $8 each.
IV
The Certificate of Incorporation of the Corporation, as
amended, is hereby amended so that Parts A and C of Article IV
setting forth the number of authorized shares and the number of
shares of each class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may
have is 48,800,000, of which 3,800,000 are to have a par value of
$100 each and 45,000,000 are to have a par value of $8 each."
"C. The shares of the Corporation are to be classified as
follows:
2,800,000 shares are to be Preferred Stock with a par value of
$100 each; 1,000,000 shares are to be Preference Stock with a par
value of $100 each; and 45,000,000 shares are to be Common Stock
with a par value of $8 each."
V
The stated capital of the Corporation will not be affected by
this Amendment to the Certificate of Incorporation of the
Corporation.
203
VI
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of a majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which such votes were cast with relation to the
proceedings provided for in this Amendment and neither the
Certificate of Incorporation or any other certificate filed
pursuant to law requires a larger proportion of votes. Such votes
were cast in person or by proxy at a stockholders' meeting duly
held at the offices of the Corporation at No. 300 Erie Boulevard
West, in the City of Syracuse, New York, on the fourth day of May,
1971, at 11 o'clock A.M., pursuant to Section 605 of the Business
Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 10th day of May, 1971.
LAUMAN MARTIN /s/
Lauman Martin, Senior Vice President
[CORPORATE SEAL]
JOHN G. BENACK /s/
John G. Benack, Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
Lauman Martin, being duly sworn, deposes and says, that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and knows
the contents thereof, and that the statements contained therein
are true.
204
LAUMAN MARTIN /s/
Sworn to before me this
10th day of May, 1971.
JANET LEATHLEY /s/
JANET LEATHLEY
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-7461685
My Commission Expires March 30, 1972.
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
I hereby certify that I have compared the annexed copy with the
original document filed by the Department of State and that the
same is a correct transcript of said original.
WITNESS my hand and seal of the Department of State on May 12,
1971.
JOHN P. LOMENZO
Secretary of State
[SEAL]
[CONFORMED]
CERTIFICATE OF AMENDMENT
205
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Dated: August 15, 1972
STATE OF NEW YORK
DEPARTMENT OF STATE
TAX $ NONE
FILING FEE $30
FILED AUG. 18, 1972
JOHN P. LOMENZO
Secretary State
By J. S.
34 Onondaga
LeBoeuf, Lamb, Leiby & MacRae
One Chase Manhattan Plaza
New York, New York 10005
CERTIFICATE OF AMENDMENT
of
206
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned by a Senior Vice President and an
Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation. It was originally incorporated under the name Niagara
Hudson Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was filed
in the Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
207
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV, under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"RESOLVED, that consent be and it hereby is given to the issue
by the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is
hereby further amended by the addition of the following provisions
tating the number, designation, relative rights, preferences, and
limitations of a fifth series of Preferred Stock, to consist of
400,000 shares of the authorized 2,800,000 shares of Preferred
Stock of the Corporation, as fixed by the Board of Directors of
the Corporation before the issuance of such series, such provisions
so added to be designated as paragraph (4E) (of Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment and subsequent amendments) and
to read as follows:
208
Particular Provisions Applicable to Preferred Stock, 7.72%
Series
(4E) The number, designations, relative rights, preferences
and limitations of the fifth series of the Preferred Stock of the
Corporation as fixed by the Board of Directors are as follows:
(A) The number of shares to constitute the fifth series shall
be 400,000 shares and the designation of such series shall be
"Preferred Stock, 7.72% Series";
(B) The dividend rate thereof shall be seven and seventy-two
one- hundredths per cent (7.72%) per annum. The dividends on each
are of the Preferred Stock, 7.72% Series, shall be cumulative from
the date of the original issue thereof;
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment, the Preferred Stock, 7.72%
Series, shall have no voting rights whatsoever;
(D) The sum per share payable upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $109.30 per
share through August 31, 1977; $107.37 per share thereafter through
August 31, 1982; $105.44 per share thereafter through August 31,
1987; $103.51 per share thereafter through August 31, 1992; and
$102.36 per share thereafter, in each case plus an amount equal to
the dividends accrued and unpaid on such share, whether or not
earned or declared;
(E) The sum per share payable upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared;
(F) The shares of the Preferred Stock, 7.72% Series, shall be
209
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $109.30 per share through August 31, 1977;
$107.37 per share thereafter through August 31, 1982; $105.44 per
share thereafter through August 31, 1987; $103.51 per share
thereafter through August 31, 1992; and $102.36 per share
thereafter, in each case plus an amount equal to the dividends
accrued and unpaid thereon to the date fixed for redemption,
whether or not earned or declared; provided, however, the Board of
Directors of the Corporation shall not prior to September 1, 1977
exercise its option to redeem any shares of the Preferred Stock,
7.72% Series, as a part of or in anticipation of any refunding
operation by the application, directly or indirectly, of borrowed
funds or the proceeds of issue of any shares of Preferred Stock or
any stock ranking prior to or on a parity with the Preferred Stock
if such borrowed funds have an interest rate or cost to the
Corporation (calculated in accordance with accepted financial
practice), or such shares have a dividend rate or cost to the
Corporation so calculated, less than the dividend rate per annum of
the Preferred Stock, 7.72% Series;
(G) The shares of the Preferred Stock, 7.72% Series, shall not
be convertible into or exchangeable for other securities of the
Corporation;
(H) There shall be no sinking fund with respect to the shares
of the Preferred Stock, 7.72% Series; and
(I) The shares of the Preferred Stock, 7.72% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV
The amendments of the certificate of incorporation effected by
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
210
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 15th day of August, 1972.
LAUMAN MARTIN /s/
Lauman Martin, Senior Vice President
HAROLD J. BOGAN /s/
Harold J. Bogan, Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says that he is a
Senior Vice President of Niagara Mohawk Power corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
LAUMAN MARTIN /s/
Sworn to before me this
15th day of August, 1972.
RUTH E. ZWIRN /s/
RUTH E. ZWIRN
Notary Public, State of New York
No. 31-9816780
211
Qualified in New York County
Commission Expires March 30, 1974
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., August 21, 1972
CASE 26290--Petition of Niagara Mohawk Power Corporation for
authority to issue $80,000,000 principal amount of General Mortgage
Bonds, % Series due August 1, 2002 and 400,000 shares of $100
par value Preferred Stock, % Series.
* * * *
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed August 15, 1972, in accordance with the
order of the Public Service Commission dated August 1, 1972.
By the Commission
SAMUEL R. MADISON /s/
Secretary
[SEAL]
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
212
I hereby certify that I have compared the annexed copy with the
original document filed by the Department of State and that the
same is a correct transcript of said original.
WITNESS my hand and seal of the Department of State on August
22, 1972.
Secretary of State
JOHN P. LOMENZO /s/
[SEAL]
[CONFORMED]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
213
__________
Dated: June 20, 1973
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED June 26, 1973
TAX $ None
FILING FEE $30
John P. Lorenzo
Secretary of State
By M.R.
LeBoeuf, Lamb, Leiby & MacRae
1 Chase Manhattan Plaza
N.Y., N.Y.
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
214
The name of the Corporation is Niagara Mohawk Power
Corporation. It was originally incorporated under the name of
Niagara Hudson Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was
filed in the Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV, under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
215
"RESOLVED, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is
hereby further amended by the addition of the following provisions
stating the number, designation, relative rights, preferences, and
limitations of a sixth series of Preferred Stock, to consist of
600,000 shares of the authorized 2,800,000 shares of Preferred
Stock of the Corporation, as fixed by the Board of Directors of the
Corporation before the issuance of such series, such provisions so
added to be designated as paragraph (4F)(of Part D of Article IV of
the 1950 Certificate of Consolidation as amended by Article V of
the 1950 Certificate of Amendment and subsequent amendments) and to
read as follows:
Particular Provisions Applicable to Preferred Stock, 7.45%
Series
(4F) The number, designations, relative rights, preferences
and limitations of the sixth series of the Preferred Stock of the
Corporation as fixed by the Board of Directors (in addition to
those set forth under the heading "General Provisions Applicable to
All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments) are as follows:
(A) The number of shares to constitute the sixth series shall
be
216
600,000 shares and the designation of such series shall be
"Preferred Stock, 7.45% Series".
(B) The dividend rate of the Preferred Stock, 7.45% Series
shall be seven and forty-five one-hundredths per cent (7.45%) per
annum (computed on the basis of a 360-day year of 12 30-day
months). The dividends on each share of the Preferred Stock,
7.45% Series shall be cumulative from the date of the original
issue thereof.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 7.45% Series shall have
no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 7.45% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $107.45 per
share through June 30, 1974, and thereafter at the following prices
in each case plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared:
For the For the
Twelve Voluntary Twelve Voluntary
Months Liquidation Months Liquidation
Ended Price Per Ended Price Per
June 30 Share June 30 Share
_______ ___________ _______ ___________
1975.................... $107.21 1993.................... $102.89
1976.................... $106.97 1994.................... $102.65
1977.................... $106.73 1995.................... $102.41
1978.................... $106.49 1996.................... $102.17
217
1979.................... $106.25 1997.................... $101.93
1980.................... $106.01 1998.................... $101.69
1981.................... $105.77 1999.................... $101.45
1982.................... $105.53 2000.................... $101.21
1983.................... $105.29 2001.................... $100.97
1984.................... $105.05 2002.................... $100.73
1985.................... $104.81 2003.................... $100.49
1986.................... $104.57 2004.................... $100.25
1987.................... $104.33 2005.................... $100.00
1988.................... $104.09 2006.................... $100.00
1989.................... $103.85 2007.................... $100.00
1990.................... $103.61 2008.................... $100.00
1991.................... $103.37 2009.................... $100.00.
1992.................... $103.13
(E) The sum per share for the Preferred Stock, 7.45% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $100 per
share plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 7.45% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $107.45 per share through June 30, 1974, and
thereafter at the following redemption prices, in each case plus an
amount equal to the dividends, accrued and unpaid on such share,
whether or not earned or declared:
For the For the
Twelve Twelve
Months Redemption Months Redemption
Ended Price Per Ended Price Per
June 30 Share June 30 Share
1975.................... $107.21 1993.................... $102.89
1976.................... $106.97 1994.................... $102.65
1977.................... $106.73 1995.................... $102.41
1978.................... $106.49 1996.................... $102.17
1979.................... $106.25 1997.................... $101.93
1980.................... $106.01 1998.................... $101.69
1981.................... $105.77 1999.................... $101.45
1982.................... $105.53 2000.................... $101.21
1983.................... $105.29 2001.................... $100.97
1984.................... $105.05 2002.................... $100.73
1985.................... $104.81 2003.................... $100.49
1986.................... $104.57 2004.................... $100.25
1987.................... $104.33 2005.................... $100.00
1988.................... $104.09 2006.................... $100.00
1989.................... $103.85 2007.................... $100.00
1990.................... $103.61 2008.................... $100.00
1991.................... $103.37 2009.................... $100.00;
1992.................... $103.13
provided, however, the Board of Directors of the Corporation
shall not prior to July 1, 1983 exercise its option to redeem any
shares of the Preferred Stock, 7.45% Series as a part of or in
anticipation of any refunding operation by the application,
directly or indirectly, of (a) borrowed funds or the proceeds of
the issue of any shares of Preferred Stock or any stock ranking
prior to or on a parity with the Preferred Stock, 7.45% Series as
to dividends or assets if such borrowed funds have an interest rate
or cost to the Corporation (calculated in accordance with accepted
financial practice), or such shares have a dividend rate or cost to
the 219
Corporation so calculated, less than 7.45% per annum, or (b) the
proceeds of the issue of any shares of stock ranking as to
dividends or assets junior to the shares of the Preferred Stock,
7.45% Series.
(G) The shares of the Preferred Stock, 7.45% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 7.45% Series, but shall not be convertible into or
exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the
Preferred Stock, 7.45% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on June 30, 1977 and on each June 30 thereafter (so long as any
shares of the Preferred Stock, 7.45% Series are outstanding)
through June 30, 2008 18,000 shares of Preferred Stock, 7.45%
Series (or the number of the shares of the Preferred Stock, 7.45%
Series then outstanding if less than 18,000), and on June 30, 2009
the balance of the shares of Preferred Stock, 7.45% Series then
outstanding, in each case at a redemption price of $100 per share,
plus an amount equal to the dividends accrued and unpaid on such
shares, whether or not earned or declared. No redemption of
shares of the Preferred Stock, 7.45% Series pursuant to subdivision
(F) above or subdivision (J) below, nor any purchase or other
acquisition of any shares of the Preferred Stock, 7.45% Series by
the Corporation, shall constitute a retirement of such shares in
lieu of or as a credit against any sinking fund retirement required
by this subdivision (H).
(I) Shares of the Preferred Stock, 7.45% Series shall be
called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 7.45%
Series annually commencing on June 30, 220
1977, pursuant to said subdivision (H), shall be cumulative and, so
long as any shares of the Preferred Stock, 7.45% Series shall be
outstanding, the Corporation shall not declare any dividend on the
Common Stock or any other stock ranking as to dividends or assets
junior to the Preferred Stock, 7.45% Series or make any payment on
account of, or set apart money for a sinking or other analogous
fund for, the purchase, redemption or other retirement of any
shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly,
and whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Preferred Stock, 7.45% Series), unless at the date of
declaration in the case of any such dividend, or at the date of any
such other payment, setting apart or distribution, no sinking fund
retirement required by said subdivision (H) shall be in arrears.
(J) The Corporation may, at the option of the Board of
Directors of the Corporation, on June 30, 1977, and on each June 30
thereafter to and including June 30, 2008, redeem 18,000 of the
shares of the Preferred Stock, 7.45% Series, or any lesser number
of said shares constituting a multiple of 1,800, in addition to
shares then to be redeemed for the sinking fund pursuant to
subdivision (H) above, in each case at a price of $100 per share,
plus an amount equal to dividends accrued and unpaid on such
shares, whether or not earned or declared, which privilege and
option so to redeem shall be noncumulative; provided, however, the
Board of Directors of the Corporation shall not exercise its option
to redeem any shares of the Preferred Stock, 7.45% Series pursuant
to this subdivision (J) as a part of or in anticipation of any
refunding operation by the application, directly or indirectly, of
borrowed funds or the proceeds of the issue of any shares of
capital stock or other securities of the Corporation or the
proceeds of the sale of any assets of the Corporation other than in
the ordinary course of business. The aggregate number of shares of
the Preferred Stock, 7.45% Series which may be redeemed in all
redemptions pursuant to this subdivision (J) shall not, however,
exceed 120,000 shares.
(K) In every case of redemption of less than all of the
221
outstanding shares of Preferred Stock, 7.45% Series pursuant to
subdivision (F), (H) or (J) above, such redemption shall be made
(i) with respect to each holder of 5% or more of the then
outstanding shares of Preferred Stock, 7.45% Series pro rata
according to the numbers of shares held by such holders, provided
that only whole share shall be selected for redemption, and (ii)
otherwise in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Shares of Preferred Stock, 7.45% Series redeemed (pursuant
to the sinking fund or otherwise), purchased or otherwise acquired
by the Corporation shall be cancelled and restored to the status
of authorized but unissued shares of Preferred Stock without serial
designation and may be reissued by the Corporation from time to
time as Preferred Stock of any other series as may be fixed from
time to time by the Board of Directors.
(M) The shares of the Preferred Stock, 7.45% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV
The amendments of the certificate of incorporation effected by
this Certificate were authorized by action of the Board of
Directors of the Corporation, pursuant to Section 502 of the
Business Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 20th day of June, 1973.
LAUMAN MARTIN /s/
LAUMAN MARTIN,
222
Senior Vice President
HAROLD J. BOGAN /s/
HAROLD J. BOGAN,
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
LAUMAN MARTIN, being duly sworn, deposes and says that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
LAUMAN MARTIN /s/
Sworn to before me this
20th day of June, 1973.
CAROLYN F. ROBERTSON /s/
CAROLYN F. ROBERTSON
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-8599125
My Commission Expires March 30, 1974
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., June 26, 1973
223
CASE 26438--Petition of Niagara Mohawk Power Corporation for
authority to issue 600,000 shares of its Preferred Stock, 7.45%
Series, $100 Par Value.
* * * *
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed June 20, 1973, in accordance with the
order of the Public Service Commission dated June 12, 1973.
By the Commission,
SAMUEL R. MADISON /s/
Secretary
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
Dated: May 7, 1974
224
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED MAY 9, 1974
TAX $230,000
FILING FEE $30
JOHN J. GHIZZO
Acting Secretary of State
LeBoeuf, Lamb, Leiby & MacRae
4800 One Chase Manhattan Plaza
New York, New York 10005
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
Pursuant to the provisions of Section 805 of the Business
Corporation Law, the undersigned, being a Senior Vice President and
the Assistant Secretary of Niagara Mohawk Power Corporation, hereby
certify:
I
225
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is
hereby further amended to effect changes authorized by Section
801(b) of the Business Corporation Law, to wit: to increase the
aggregate number of shares of Preferred Stock of the par value of
$100 each which the Corporation shall have the authority to issue
by an additional 3,000,000 shares of such Preferred Stock and to
increase the aggregate number of shares of Common Stock of the par
value of $8 each which the Corporation shall have the authority to
issue by an additional 20,000,000 shares of such Common Stock, so
that the authorized shares of capital stock shall consist of
5,800,000 shares of Preferred Stock with a par value of $100 each,
1,000,000 shares of Preference Stock with a par value of $100 each
and 65,000,000 shares of Common Stock with a par value of $8 each.
IV
The Certificate of Incorporation of the Corporation, as
amended, is hereby amended so that Parts A and C of Article IV
setting forth the number of authorized shares and the number of
shares of each class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may
have is 71,800,000, of which 6,800,000 are to have a par value of
$100 each and 65,000,000 are to have a par value of $8 each."
"C. The shares of the Corporation are to be classified as
226
follows:
5,800,000 shares are to be Preferred Stock with a par value of
$100 each; 1,000,000 shares are to be Preference Stock with a par
value of $100 each; and 65,000,000 shares are to be Common Stock
with a par value of $8 each."
V
The stated capital of the Corporation will not be affected by
this Amendment to the Certificate of Incorporation of the
Corporation.
VI
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of a majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which such votes were cast with relation to the
proceedings provided for in this Amendment and neither the
Certificate of Incorporation nor any other certificate filed
pursuant to law requires a larger proportion of votes. Such votes
were cast in person or by proxy at a stockholders' meeting duly
held at the offices of the Corporation at No. 300 Erie Boulevard
West, in the City of Syracuse, New York, on the seventh day of May,
1974, at 11 o'clock A.M., pursuant to Section 605 of the Business
Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 7th day of May, 1974.
Lauman Martin, Senior Vice President
[CORPORATE SEAL]
Harold J. Bogan, Assistant Secretary
227
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA )
Lauman Martin, being duly sworn, deposes and says, that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and knows
the contents thereof, and that the statements contained therein are
true.
Lauman Martin /s/
Sworn to before me this
7th day of May, 1974.
JANET LEATHLEY /s/
JANET LEATHLEY
Notary Public of the State of New York
Qualified in Onon. Co. No. 34-7461635
My Commission Expires March 30, 1976
STATE OF NEW YORK )
) ss.:12828
DEPARTMENT OF STATE )
228
I hereby certify that I have compared the annexed copy with the
original document filed by the Department of State and that the
same is a correct transcript of said original.
Witness my hand and seal of the Department of State on May 9,
1974.
John J. Ghizzo
Acting Secretary of State
R662-504
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
229
__________
Dated: March 11, 1975
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED MAR. 12, 1975
TAX $ NONE
FILING FEE $30
MARIO M. CUOMO
Secretary of State
By M
34 Onondaga
LeBoeuf, Lamb, Leiby & MacRae
140 Broadway
New York, New York 10005
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the Business
230
Corporation Law, the undersigned, being a Senior Vice President and
an Assistant Secretary of Niagara Mohawk Power Corporation, hereby
certify:
I.
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was
filed in the Department of State on September 15, 1937.
The Certificate of Consolidation forming the Corporation was
filed in the Department of State on July 31, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of
Paragraph 231
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"RESOLVED, that consent be and it hereby is given to the issue
by the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III.
The Certificate of Incorporation, as heretofore amended, is
hereby further amended by the addition of the following provisions
stating the number, designation, relative rights, preferences, and
limitations of a seventh Series of Preferred Stock, to consist of
400,000 shares of the authorized 5,800,000 shares of Preferred
Stock of the Corporation, as fixed by the Board of Directors of the
Corporation before the issuance of such series, such provisions so
added to be designated as paragraph (4G) (of Part D of Article IV
of the 1950 Certificate of Consolidation as amended by Article V of
the 1950 Certificate of Amendment and subsequent amendments) and to
read as follows:
Particular Provisions Applicable to Preferred Stock, 10.60%
Series
(4G) The number, designations, relative rights, preferences
and limitations of the seventh series of the Preferred Stock of the
Corporation as fixed by the Board of Directors (in addition to
those set forth under the heading "General Provisions Applicable to
All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV 232
of the 1950 Certificate of Consolidation as amended by Article V of
the 1950 Certificate of Amendment and subsequent amendments) are as
follows:
(A) The number of shares to constitute the seventh series
shall be 400,000 shares and the designation of such series shall be
"Preferred Stock, 10.60% Series".
(B) The dividend rate of the Preferred Stock, 10.60% Series
shall be Ten and Sixty One-hundredths per cent (10.60%) per annum
(computed on the basis of a 360-day year of twelve 30-day months).
The dividends on each share of the Preferred Stock, 10.60% Series
shall be cumulative from the date of the original issue of shares
of such Series or from the dividend payment date to which dividends
have been paid next preceding the date of issue of shares issued
thereafter.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 10.60% Series shall
have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 10.60% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $110.60 per
share through March 31, 1985, at $107.95 a share thereafter through
March 31, 1990, at $105.30 a share thereafter through March 31,
1995 and at $102.65 a share thereafter, in each case plus an amount
equal to the dividends accrued and unpaid on such share, whether or
not earned or declared.
(E) The sum per share for the Preferred Stock, 10.60% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $100 per
233
share plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 10.60% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $110.60 a share through March 31, 1985, at
$107.95 a share thereafter through March 31, 1990, at $105.30 a
share thereafter through March 31, 1995, and at $102.65 a share
thereafter, in each case plus an amount equal to the dividends,
accrued and unpaid on such share, whether or not earned or
declared; provided, however, the Board of Directors of the
Corporation shall not prior to March 31, 1985 exercise its option
to redeem any shares of the Preferred Stock, 10.60% Series as a
part of or in anticipation of any refunding operation by the
application, directly or indirectly, of borrowed funds or the
proceeds of the issue of any shares of Preferred Stock or any stock
ranking prior to or on a parity with the Preferred Stock, 10.60%
Series as to dividends or assets if such borrowed funds have an
interest rate or cost to the Corporation (calculated in accordance
with accepted financial practice), or such shares have a dividend
rate or cost to the Corporation so calculated, less than 10.60% per
annum.
(G) The shares of the Preferred Stock, 10.60% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 10.60% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the
Preferred Stock, 10.60% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on March 31, 1980 and on each March 31 thereafter (so long as any
shares of the Preferred Stock, 10.60% Series are outstanding), a
number of shares of Preferred Stock, 10.60% Series equal to 5% of
the maximum number of shares of Preferred Stock, 10.60% Series, at
any time outstanding (or the number of shares of the Preferred
Stock, 10.60% Series then outstanding if less than 5% of such
maximum number), in each case at a redemption price of $100 per
share, plus 234
an amount equal to the dividends accrued and unpaid on such shares,
whether or not earned or declared. No redemption of shares of the
Preferred Stock, 10.60% Series pursuant to subdivision (F) above or
subdivision (J) below, shall constitute a retirement of such shares
in lieu of or as a credit against any sinking fund retirement
required by this subdivision (H).
(I) Shares of the Preferred Stock, 10.60% Series shall be
called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 10.60%
Series annually commencing on March 31, 1980, pursuant to said
subdivision (H), shall be cumulative and, so long as any shares of
the Preferred Stock, 10.60% Series shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to the
Preferred Stock, 10.60% Series or make any payment on account of,
or set apart money for a sinking or other analogous fund for, the
purchase, redemption or other retirement of any shares of Common
Stock or other such junior stock, or make any distribution in
respect thereof, either directly or indirectly, and whether in cash
or property or in obligations or stock of the Corporation (other
than stock ranking as to dividends and assets junior to the
Preferred Stock, 10.60% Series), unless at the date of declaration
in the case of any such dividend, or at the date of any such other
payment, setting apart or distribution, no sinking fund retirement
required by said subdivision (H) shall be in arrears. If the
Corporation shall be prevented for any reason from redeeming the
number of shares of Preferred Stock, 10.60% Series, which it is
required to retire on any such March 31, the deficit shall be made
good on the first succeeding March 31 on which the Corporation
shall not be prevented from redeeming such shares of Preferred
Stock, 10.60% Series. Shares 235
of the Preferred Stock, 10.60% Series, purchased by the Corporation
may be applied to satisfy the sinking fund on one or more of the
foregoing March 31 dates.
(J) The Corporation may, at the option of the Board of
Directors of the Corporation, on March 31, 1980, and on each March
31 thereafter, may apply to the sinking fund up to a number of
shares of the Preferred Stock, 10.60% Series, equal to 5% of the
maximum number of shares of Preferred Stock, 10.60% Series, at any
time outstanding, in addition to shares then to be redeemed for the
sinking fund pursuant to subdivision (H) above, either by
redemption at a price of $100 per share, plus an amount equal to
dividends accrued and unpaid on such shares, whether or not earned
or declared, which privilege and option so to redeem shall be
noncumulative and shall not reduce the sinking fund requirement
pursuant to subdivision (H) above in any subsequent year, or by
purchase; provided, however, the Board of Directors of the
Corporation shall not exercise its option to redeem any shares of
the Preferred Stock, 10.60% Series pursuant to this subdivision (J)
as a part of or in anticipation of any refunding operation by the
application, directly or indirectly, of borrowed funds or the
proceeds of the issue of any shares of capital stock or other
securities of the Corporation or the proceeds of the sale of any
assets of the Corporation other than in the ordinary course of
business.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 10.60% Series pursuant to
subdivision (F), (H) or (J) above, such redemption shall be made
(i) with respect to each holder of 5% or more of the then
outstanding shares of Preferred Stock, 10.60% Series pro rata
according to the numbers of shares held by such holders, provided
that only whole shares shall be selected for redemption, and (ii)
otherwise in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Shares of Preferred Stock, 10.60% Series redeemed
(pursuant 236
to the sinking fund or otherwise), purchased or otherwise acquired
by the Corporation shall be cancelled and restored to the status
of authorized but unissued shares of Preferred Stock without serial
designation and may be reissued by the Corporation from time to
time as Preferred Stock of any other series as may be fixed from
time to time by the Board of Directors of the Corporation.
(M) The shares of the Preferred Stock, 10.60% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV.
The amendments of the Certificate of Incorporation effected by
this Certificate were authorized by action of the Board of
Directors of the Corporation, pursuant to Section 502 of the
Business Corporation Law.
In WITNESS WHEREOF, we have made and subscribed this
Certificate this 11th day of March, 1975.
LAUMAN MARTIN /s/
[CORPORATE SEAL] Senior Vice President
HAROLD J. BOGAN /s/
Assistant Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
Lauman Martin, being duly sworn, deposes and says that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the 237
contents thereof and that the statements contained therein are
true.
LAUMAN MARTIN /s/
Sworn to before me this 11th day
of March, 1975.
RUTH E. ZWIRN /s/
RUTH E. ZWIRN
Notary Public, State of New York
No. 31-9816780
Qualified in New York County
Commission Expires March 30, 1976
[NOTARIAL SEAL]
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., 1975
CASE 26692--Petition of Niagara Mohawk Power Corporation for
authority to issue 600,000 shares of its Preferred Stock, %
Series, $100 Par Value.
* * *
The Public Service Commission hereby consents to and approves
this Certificate of Amendment of Certificate of Incorporation of
Niagara Mohawk Power Corporation under Section 805 of the Business
Corporation Law, executed March 11, 1975, in accordance with the
order of the Public Service Commission dated September 9, 1974, as
amended.
By the Commission,
238
SAMUEL R. MADISON /s/
Secretary
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Dated: August 26, 1975
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED AUG. 27, 1975
TAX $ NONE
FILING FEE $30
MARIO M. CUOMO
Secretary of State
By MR
239
LeBoeuf, Lamb, Leiby & MacRae
140 Broadway
New York, New York 10005
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the Business
Corporation Law, the undersigned, being a Vice President and an
Assistant Secretary of Niagara Mohawk Power Corporation, hereby
certify:
I.
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was
filed in the Department of State on September 15, 1937.
240
A Certificate of Consolidation forming the Corporation was
filed in the Department of State on July 31, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV, under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"RESOLVED, that consent be and it hereby is given to the issue
by the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III.
The Certificate of Incorporation, as heretofore amended, is
241
hereby further amended by the addition of the following provisions
stating the number, designation, relative rights, preferences, and
limitations of a eighth Series of Preferred Stock, to consist of
300,000 shares of the authorized 5,800,000 shares of Preferred
Stock of the Corporation, as fixed by the Board of Directors of the
Corporation before the issuance of such series, such provisions so
added to be designated as paragraph (4H) (of Part D of Article IV
of the 1950 Certificate of Consolidation as amended by Article V of
the 1950 Certificate of Amendment and subsequent amendments) and to
read as follows:
Particular Provisions Applicable to Preferred Stock, 11 3/4%
Series
4(H) The number, designations, relative rights, preferences and
limitations of the eighth series of the Preferred Stock of the
Corporation as fixed by the Board of Directors (in addition to
those set forth under the heading "General Provisions Applicable to
All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments) are as follows:
(A) The number of shares to constitute the eighth series shall
be 300,000 shares and the designation of such series shall be
"Preferred Stock, 11 3/4% Series".
(B) The dividend rate of the Preferred Stock, 11 3/4% Series
shall be eleven and three-quarters per cent (11 3/4%) per annum
(computed on the basis of a 360-day year of twelve 30-day months).
The dividends on each share of the Preferred Stock, 11 3/4% Series
shall be cumulative from the date of the original issue of shares
of such Series or from the dividend payment date to which dividends
have been paid next preceding the date of issue of shares issued
thereafter.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part 242
D of Article IV of the 1950 Certificate of Consolidation as amended
by Article V of the 1950 Certificate of Amendment and subsequent
amendments, the Preferred Stock, 11 3/4% Series shall have no
voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 11 3/4% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $111.75 per
share prior to October 1, 1985, at $108.75 a share thereafter and
prior to October 1, 1990, at $105.75 a share thereafter and prior
to October 1, 1995, and at $102.75 a share thereafter, in each case
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(E) The sum per share for the Preferred Stock, 11 3/4% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $100 per
share plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 11 3/4% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $111.75 a share prior to October 1, 1985, at
$108.75 a share thereafter and prior to October 1, 1990, at $105.75
a share thereafter and prior to October 1, 1995, and at $102.75 a
share thereafter, in each case plus an amount equal to the
dividends, accrued and unpaid on such share, whether or not earned
or declared; provided, however, the Board of Directors of the
Corporation shall not prior to October 1, 1985 exercise its option
to redeem any shares of the Preferred Stock, 11 3/4% Series as a
part of or in anticipation of any refunding operation by the
application, directly or indirectly, of borrowed funds or the
proceeds of the issue of any shares of Preferred Stock or any stock
ranking prior to or on a parity with the Preferred Stock, 11 3/4%
Series as to dividends or assets if such borrowed funds have an
interest rate or cost to the Corporation (calculated in accordance
with accepted financial 243
practice), or such shares have a dividend rate or cost to the
Corporation so calculated, less than 11 3/4% per annum.
(G) The shares of the Preferred Stock, 11 3/4% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 11 3/4% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the
Preferred Stock, 11 3/4% Series the Corporation will, subject to
the provisions of subdivision (I) below, call for redemption and
retire on September 30, 1980 and on each September 30 thereafter
(so long as any shares of the Preferred Stock, 11 3/4% Series are
outstanding), 15,000 shares of Preferred Stock, 11 3/4% Series (or
the number of shares of the Preferred Stock, 11 3/4% Series then
outstanding if less than 15,000 shares), in each case at a
redemption price of $100 per share, plus an amount equal to the
dividends accrued and unpaid on such shares, whether or not earned
or declared. No redemption of shares of the Preferred Stock, 11
3/4% Series pursuant to subdivision (F) above or subdivision (J)
below, shall constitute a retirement of such shares in lieu of or
as a credit against any sinking fund retirement required by this
subdivision (H).
(I) Shares of the Preferred Stock, 11 3/4% Series shall be
called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 11 3/4%
Series annually commencing on September 30, 1980, pursuant to said
subdivision (H), shall be cumulative and, so long as any shares of
the Preferred Stock, 11 3/4% Series shall be outstanding, the
Corporation shall not declare any dividend on the 244
Common Stock or any other stock ranking as to dividends or assets
junior to the Preferred Stock, 11 3/4% Series or make any payment
on account of, or set apart money for a sinking or other analogous
fund for, the purchase, redemption or other retirement of any
shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly,
and whether in cash or property or in obligation or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Preferred Stock, 11 3/4% Series), unless at the date
of declaration in the case of any such dividend, or at the date of
any such other payment, setting apart or distribution, no sinking
fund retirement required by said subdivision (H) shall be in
arrears. If the Corporation shall be prevented for any reason from
redeeming the number of shares of Preferred Stock, 11 3/4% Series,
which it is required to retire on any such September 30, the
deficit shall be made good on the first succeeding September 30 on
which the Corporation shall not be prevented from redeeming such
shares of Preferred Stock, 11 3/4% Series, Shares of the Preferred
Stock, 11 3/4% Series, purchased by the Corporation may be applied
to satisfy the sinking fund on one or more of the foregoing
September 30 dates.
(J) The Corporation may, at the option of the Board of
Directors of the Corporation, on September 30, 1980, and on each
September 30 thereafter, may apply to the sinking fund up to
15,000 shares of the Preferred Stock, 11 3/4% Series, in addition
to shares then to be redeemed for the sinking fund pursuant to
subdivision (H) above, either by redemption at a price of $100 per
share, plus an amount equal to dividends accrued and unpaid on
such shares, whether or not earned or declared, which privilege and
option so to redeem shall be noncumulative and shall not reduce the
sinking fund requirement pursuant to subdivision (H) above in any
subsequent year, or by purchase; provided, however, the Board of
Directors of the Corporation shall not exercise its option to
redeem any shares of the Preferred Stock, 11 3/4% Series pursuant
to this subdivision (J) as a part of or in anticipation of any
refunding operation by the application, directly or indirectly, of
borrowed funds or the proceeds of the issue of any shares of
capital stock or other securities of the Corporation or the
proceeds of the sale of any 245
assets of the Corporation other than in the ordinary course of
business.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 11 3/4% Series pursuant to
subdivision (F), (H) or (J) above, such redemption shall be made
(i) with respect to each holder of 5% or more of the then
outstanding shares of Preferred Stock, 11 3/4% Series pro rata
according to the numbers of shares held by such holders, provided
that only whole shares shall be selected for redemption, and (ii)
otherwise in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Shares of Preferred Stock, 11 3/4% Series redeemed
(pursuant to the sinking fund or otherwise), purchased or
otherwise acquired by the Corporation shall be cancelled and
restored to the status of authorized but unissued shares of
Preferred Stock without serial designation and may be reissued by
the Corporation from time to time as Preferred Stock of any other
series as may be fixed from time to time by the Board of Directors
of the Corporation.
(M) The shares of the Preferred Stock, 11 3/4% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV.
The amendments of the Certificate of Incorporation effected by
this Certificate were authorized by action of the Board of
Directors of the Corporation, pursuant to Section 502 of the
Business Corporation Law.
246
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 26th day of August, 1975.
JOHN H. TERRY
Vice President
[CORPORATE SEAL]
HAROLD J. BOGAN
Assistant Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
John H. Terry, being duly sworn, deposes and says that he is a
Vice President of Niagara Mohawk Power Corporation, the corporation
named in and described in the foregoing Certificate, that he has
read and executed the foregoing Certificate and knows the contents
thereof and that the statements contained therein are true.
JOHN H. TERRY
Sworn to before me this 26th day
of August, 1975.
RUTH E. ZWIRN
NOTARY PUBLIC, State of New York
No. 31-9816780
Qualified in New York County
Commission Expires March 30, 1976
247
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., August 27, 1975
CASE 26864--Application of NIAGARA MOHAWK POWER CORPORATION for
Authority to Issue up to 3,500,000 Shares of its Common Capital
Stock, $1 par value, up to 400,000 Shares of its Preferred Stock,
$100 par value, in one or more new series, and up to $50,000,000
principal amount of its General Mortgage Bonds, in one or more new
series with maturities of up to thirty years.
* * *
The Public Service Commission hereby consents to and approves
this Certificate of Amendment of Certificate of Incorporation of
Niagara Mohawk Power Corporation under Section 805 of the Business
Corporation Law, executed August 26, 1975, in accordance with the
order of the Public Service Commission dated August 7, 1975, as
amended.
By the Commission,
SAMUEL R. MADISON
Secretary
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
248
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED MAY 7, 1975
TAX $ NONE
FILING FEE $30.00
MARIO M. CUOMO
Secretary of State
By MR
LeBoeuf, Lamb, Leiby & MacRae
140 Broadway
New York, New York 10005
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
249
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
Pursuant to the provisions of Section 805 of the Business
Corporation Law, the undersigned, being a Senior Vice President and
the Assistant Secretary of Niagara Mohawk Power Corporation, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is
hereby further amended to effect changes authorized by Section
801(b) of the Business Corporation Law, to wit: change each of the
65,000,000 shares of authorized Common Stock with a par value of
$8 each, of which 46,551,148 shares are issued and outstanding,
into an equal number of shares of Common Stock with a par value of
$1 each, retaining the amount represented by the reduction of the
par value of the issued and outstanding Common Stock from
$372,409,184 to $46,551,148, aggregating $325,858,036 in stated
capital, and eliminate the preemptive rights of the holders of
Common Stock.
IV
The Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended so that Parts A and C
250
of Article IV setting forth the number of authorized shares and the
number of shares of each class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may
have is 71,800,000 of which 6,800,000 are to have a par value of
$100 each and 65,000,000 are to have a par value of $1 each."
"C. The shares of the Corporation are to be classified as
follows:
5,800,000 shares are to be Preferred Stock with a par value of
$100 each; 1,000,000 shares are to be Preference Stock with a par
value of $100 each; and 65,000,000 shares are to be Common Stock
with a par value of $1 each."
V
The 65,000,000 previously authorized shares of Common Stock
with a par value of $8 each of which 46,551,148 shares are issued
and outstanding are hereby changed to 65,000,000 shares of Common
Stock of the par value of $1 each, 46,551,148 shares will be
issued shares, retaining the amount of the reduction of the par
value of issued and outstanding shares of Common Stock in stated
capital as defined in Section 102(a)(12) of the Business
Corporation Law and the manner in which such changes will be
effected are as follows: each share of previously authorized
Common Stock of the par value of $8 each is hereby changed into one
share of Common Stock of the par value of $1 each.
VI
The stated capital of the Corporation will not be reduced by
this Amendment to the Certificate of Incorporation of the
Corporation.
251
VII
The Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended so that subdivision
(B) of Paragraph (8) of part D of Article IV of the Certificate of
Incorporation, as amended, relating to preemptive rights of the
holders of the Common Stock, shall read as follows:
"(B) No holder of the Common Stock of the Corporation shall
have any preemptive right to purchase or subscribe for any part of
the unissued stock of the Corporation or of any stock of the
Corporation to be issued by reason of any increase of the
authorized capital stock of the Corporation, or to purchase or
subscribe for any bonds, certificates of indebtedness, debentures
or other securities, convertible into or carrying options or
warrants to purchase stock or other securities of the Corporation
or to purchase or subscribe for any of the Stock of the Corporation
purchased by the Corporation or by its nominee or nominees, or to
have any other preemptive rights as now or hereafter defined by the
laws of the State of New York."
VIII
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of a majority of the outstanding
shares of the Corporation entitled to vote thereon at the
stockholders' meeting at which such votes were cast with relation
to the proceedings provided for in this Amendment and neither the
Certificate of Incorporation nor any other certificate filed
pursuant to law requires a larger portion of votes. Such votes
were cast in person or by proxy at a stockholders' meeting duly
held at the offices of the Corporation at No. 300 Erie Boulevard
West, in the City of Syracuse, New York, on the sixth day of May,
1975, at 11 o'clock A.M., pursuant to Section 605 of the Business
Corporation Law.
In Witness Whereof, we have made and subscribed this
Certificate this 6th day of May, 1975.
252
LAUMAN MARTIN /s/
Lauman Martin
Senior Vice President
[CORPORATE SEAL]
HAROLD J. BOGAN /s/
Harold J. Bogan
Assistant Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
Lauman Martin, being duly sworn, deposes and says, that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and knows
the contents thereof, and that the statements contained therein are
true.
LAUMAN MARTIN /s/
Lauman Martin
Sworn to before me this 6th day
of May, 1975.
JANET LEATHLEY /s/
Janet Leathley
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-7461685
My Commission Expires March 30, 1976
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
253
Albany, N. Y.,
May 7, 1975
CASE NO. 26823--Petition of NIAGARA MOHAWK POWER CORPORATION
for authority to reduce the par value and eliminate preemptive
rights of its common stock.
* * *
The Public Service Commission hereby consents to and approves
this Certificate of Amendment of Certificate of Incorporation of
Niagara Mohawk Power Corporation under Section 805 of the Business
Corporation Law, executed May 6, 1975, in accordance with the order
of the Public Service Commission dated April 15, 1975.
By the Commission,
SAMUEL R. MADISON /s/
Secretary
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
254
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED MAY 7, 1976
TAX $ NONE
FILING FEE $30.00
MARIO M. CUOMO
Secretary of State
By O'Neill
Dated: May 4, 1976
LeBoeuf, Lamb, Leiby & MacRae
140 Broadway
New York, New York 10005
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
255
Pursuant to the provisions of Section 805 of the Business
Corporation Law, the undersigned, being a Vice President and an
Assistant Secretary of Niagara Mohawk Power Corporation, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed in the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is
hereby further amended to effect changes authorized by Section
801(b) of the Business Corporation Law, to wit: (1) change the
2,400,000 authorized but unissued shares of Preferred Stock with a
par value of $100 each into 9,600,000 shares of Preferred Stock
with a par value of $25 each, each share of such 2,400,000 shares
of Preferred Stock being changed into four shares of Preferred
Stock with a par value of $25 each rather than $100, without in any
manner changing the 3,400,000 issued and outstanding shares of
Preferred Stock of the par value of $100 each, (2) amend the
general provisions applicable to all series of Preferred Stock set
forth in Paragraph 5 of Part D of Article IV of the Certificate of
Incorporation, as amended, to fix the limited voting rights of
shares of Preferred Stock with a par value of $25 per share at
one-quarter of the vote per share of each share of Preferred Stock
of the par value of $100 per share and (3) change the 1,000,000
shares of authorized Preference Stock with a par value of $100
each, none of which are issued and outstanding, into 4,000,000
shares of Preference Stock with a par value of $25 each.
256
IV
The Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended so that Parts A and C
of Article IV setting forth the number of authorized shares and the
number of shares of each class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may
have is 82,000,000, of which 3,400,000 are to have a par value of
$100 each, 13,600,000 are to have a par value of $25 each and
65,000,000 are to have a par value of $1 each."
"C. The shares of the Corporation are to be classified as
follows:
3,400,000 shares are to be Preferred Stock with a par value of
$100 each; 9,600,000 shares are to be Preferred Stock with a par
value of $25 each; 4,000,000 shares are to be Preference Stock with
a par value of $25 each; and 65,000,000 shares are to be Common
Stock with a par value of $1 each."
V
The 2,400,000 previously authorized but unissued shares of
Preferred Stock with a par value of $100 each are hereby changed to
9,600,000 shares of authorized but unissued shares of Preferred
Stock with a par value of $25 each and the 1,000,000 previously
authorized but unissued shares of Preference Stock with a par value
of $100 each are hereby changed to 4,000,000 shares of authorized
but unissued shares of Preference Stock with a par value of $25
each, and the manner in which such changes will be effected is as
follows: each share of the previously authorized but unissued
Preferred Stock of the par value of $100 per share is hereby
changed into four shares of Preferred Stock of the par value of $25
each, and each share of previously authorized but unissued
Preference Stock of the par value of $100 each is hereby changed
into four shares of Preference Stock of the par value of $25 each.
257
VI
The Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended by making the
following changes in Subparagraphs (E), (F) and (H) of Paragraph
(5) of Part D of Article IV of the Certificate of Incorporation, as
amended, to provide that when the limited voting rights of the
Preferred Stock of the par value of $25 per share are exercisable,
the holders thereof shall have one-quarter of one vote per share
for each share of Preferred Stock of the par value of $25 per
share, each holder of Preferred Stock of the par value of $100 per
share being entitled to one vote for each share of such Preferred
Stock, the changes being indicated by underlining additions:
Amend the portion of Subparagraph (E) preceding subclause (1)
thereof to read as follows:
"(E) So long as any shares of the Preferred Stock of any
series are outstanding, the Corporation shall not, without the
consent (given in writing or by vote at a meeting called for that
purpose in the manner prescribed by the By-Laws of the Corporation)
of the holders of record of at least a majority of the total
number of votes which may be cast by the holders of shares of
Preferred Stock of all series then outstanding, each holder of
Preferred Stock of the par value of $25 per share being entitled to
one-quarter of one vote for each such share of Preferred Stock and
each holder of Preferred Stock of the par value of $100 per share
being entitled to one vote for each such share of Preferred Stock:"
Amend the portion of Subparagraph (F) preceding subclause (1)
thereof to read as follows:
"(F) So long as any shares of the Preferred Stock of any
series are outstanding, the Corporation shall not, without the
consent (given in writing or by vote at a meeting called for that
purpose in the manner prescribed by the By-Laws of the Corporation)
of the holders of record of at least two-thirds of the total number
of votes which may be cast by the holders of shares of Preferred
Stock of all 258
series then outstanding, each holder of Preferred Stock of the par
value of $25 per share being entitled to one-quarter of one vote
for each such share of Preferred Stock and each holder of Preferred
Stock of the par value of $100 per share being entitled to one vote
for each such share of Preferred Stock:"
Subparagraph (H) is amended to read as follows:
"(H) Whenever dividends payable on the Preferred Stock shall
be in default in an aggregate amount equivalent to four full
quarterly dividends on all shares of such Preferred Stock then
outstanding, thereafter and until all dividends on all shares of
the Preferred Stock at the time in default shall have been paid or
declared and set apart for payment, the holders of shares of the
Preferred Stock, voting separately as a class and regardless of
series, shall be entitled to elect a majority of the Board of
Directors, as then constituted; and the holders of any other class
or classes of stock of the Corporation entitled to vote for the
election of directors shall be entitled, voting separately as a
class, to elect the remainder of the Board of Directors of the
Corporation, as then constituted. The right of the holders of the
Preferred Stock voting separately as a class to elect members of
the Board of Directors of the Corporation as aforesaid shall
continue until such time as all dividends on all shares of the
Preferred Stock in default shall have been paid in full, or
declared and set apart for payment (and such dividends shall be
paid, or declared and set apart for payment, out of assets
available therefor as soon as is reasonably practicable), at which
time the right of the holders of shares of the Preferred Stock
voting separately as a class to electmembers of the Board of
Directors as aforesaid shall terminate, subject to revesting in the
event of each and every subsequent default of the character above
mentioned.
The aforesaid rights of the Preferred Stock and of any other
class or classes of stock of the Corporation to vote separately for
the election of members of the Board of Directors may be exercised
at any annual meeting of stockholders of the Corporation or, within
the limitations hereinafter provided, at any special meeting of
259
stockholders of the Corporation held for the purpose of electing
directors.
At any time when the right of the holders of the Preferred
Stock to elect a majority of the Board of Directors is vested as
aforesaid, a special meeting of stockholders of the Corporation may
be called and held for the purpose of electing directors in the
following manner (unless under the provisions of the By-Laws of the
Corporation, as then in effect, an annual meeting of stockholders
of the Corporation is to be held within 60 days after the vesting
in the holders of the Preferred Stock of the right to elect members
of the Board of Directors or unless, since the vesting of such
right, a meeting of stockholders of the Corporation has theretofore
been held at which holders of the Preferred Stock were entitled to
elect members of the Board of Directors):
Upon the written request of the holders of record of not less
than 10% of the total number of votes which may be cast by shares
of the Preferred Stock then outstanding, regardless of series,
addressed to the Secretary of the Corporation, the Secretary or an
Assistant Secretary of the Corporation shall call a special meeting
of the stockholders entitled to vote for the election of directors,
for the purpose of electing a majority of the Board of Directors by
the vote of the Preferred Stock, and the remainder of the Board of
Directors by the vote of such other class or classes of stock as
may then be entitled to vote for the election of directors, voting
separately as hereinbefore provided. Such meeting shall be held
within 50 days after personal service of the said written request
upon the Secretary of the Corporation, or within 50 days after
mailing the same within the United States of American by registered
mail addressed to the Secretary of the Corporation at its principal
office. If such meeting shall not be called within 20 days of such
personal service or mailing, then the holders of record of not less
than 10% of the total number of votes which may be cast by shares
of the Preferred Stock then outstanding, regardless of series, may
designate in writing one of their number to call such special
meeting at the expense of the Corporation, and such meeting may be
called by such person so designated upon the notice required for
annual meetings of 260
stockholders and shall be held at the place for the holding of
annual meetings of stockholders of the Corporation. Any holder of
the Preferred Stock so designated shall have access to the stock
books of the Corporation for the purpose of causing said meeting to
be called as aforesaid.
At any annual or special meeting held for the purpose of
electing directors when the holders of the Preferred Stock shall
be entitled to elect members of the Board of Directors as
aforesaid, the presence in person or by proxy of the holders of a
majority of the total number of outstanding shares of the class or
classes of stock of the Corporation other than the Preferred Stock
entitled to elect directors as aforesaid shall be required to
constitute a quorum of such class or classes for the election of
directors by such class or classes, and the presence in person or
by proxy of the holders of a majority of the total number of
outstanding votes which may be cast by shares of the Preferred
Stock shall be required to constitute a quorum of such class for
the election of directors by such class; provided, however, that a
majority of those holders of the stock of either such class (or
classes) who are present in person or by proxy shall have power to
adjourn such meeting for the election of directors by such class
from time to time without notice other than announcement at the
meeting.
At any meeting of stockholders for the purpose of electing
directors during such times as the holders of shares of the
Preferred Stock shall be entitled to elect members of the Board of
Directors as aforesaid, each holder of shares of the Preferred
Stock of the par value of $100 per share shall be entitled to as
many votes as shall equal the number of votes which (except for
this provision as to cumulative voting) he would be entitled to
cast for the election of directors with respect to his shares of
stock multiplied by the number of directors to be elected by the
holders of the Preferred Stock, and he may cast all of such votes
for a single director or may distribute them among the number to be
voted for, or any two or more of them, as he may see fit, and each
holder of shares of the Preferred Stock of the par value of $25 per
share shall be entitled to as many votes as shall equal the number
of votes which (except for 261
this provision as to cumulative voting) he would be entitled to
cast for the election of Directors with respect to his shares of
stock multiplied by the number of Directors to be elected by the
holders of preferred stock and divided by four and he may cast all
of such votes for a single director or may distribute them among
the number to be voted for, or any two or more of them, as he may
see fit.
Upon the election of a majority of the Board of Directors by
the holders of the Preferred Stock, the term of office of all
directors then in office shall terminate; and no delay or failure
by the holders of other classes of stock in electing the remainder
of the Board of Directors shall invalidate the election of a
majority thereof by the holders of the Preferred Stock.
Upon any termination of the right of the holders of the
Preferred Stock to elect members of the Board of Directors as
aforesaid, the term of office of the directors then in office shall
terminate upon the election of a majority of the Board of
Directors, as then constituted, at a meeting of the holders of the
class or classes of stock of the Corporation then entitled to vote
for directors, which meeting may be held at any time after such
termination of such right, and shall be called upon request of
holders of record of such class or classes of stock then entitled
to vote for directors, in like manner and subject to similar
conditions as hereinbefore in this subdivision (H) provided with
respect to the call of a special meeting of stockholders for the
election of directors by the holders of the Preferred Stock.
In case of any vacancy in the office of a director occurring
among the directors elected by the holders of the Preferred Stock
as aforesaid, or of a successor to any such director, the remaining
directors so elected, by vote of a majority thereof, or the
remaining director so elected if there be but one, may elect a
successor or successors to hold office for the unexpired term of
the director or directors whose place or places shall be vacant,
and such successor or successors shall be deemed to have been
elected by the holders of the Preferred Stock as aforesaid.
Likewise, in case of any vacancy in the office of a director
occurring (at a time when the holders of 262
the Preferred Stock shall be entitled to elect members of the Board
of Directors as aforesaid) among the directors elected by the
holders of the class or classes of stock of the Corporation other
than the Preferred Stock, or of a successor to any such director,
the remaining directors so elected by vote of a majority thereof,
or of the remaining director so elected if there be but one, may
elect a successor or successors to hold office for the unexpired
term of the director or directors whose place or places shall be
vacant, and such successor or successors shall be deemed to have
been elected by such holders of the class or classes of stock of
the Corporation other than the Preferred Stock."
VII
The stated capital of the Corporation will not be reduced by
this Amendment to the Certificate of Incorporation of the
Corporation.
VIII
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of a majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which such votes were cast with relation to the
proceedings provided for in this Amendment and neither the
Certificate of Incorporation nor any other certificate filed
pursuant to law requires a larger portion of votes. Such votes
were cast in person or by proxy at a stockholders' meeting duly
held at the offices of the Corporation at No. 300 Erie Boulevard
West, in the City of Syracuse, New York, on the fourth day of May,
1976 at 11 o'clock A.M., pursuant to Section 605 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 4th day of May, 1976.
JOHN H. TERRY /s/
Vice President
263
[CORPORATE SEAL]
HAROLD J. BOGAN /s/
Assistant Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN H. TERRY, being duly sworn, deposes and says, that he is a
Vice President of Niagara Mohawk Power Corporation, the Corporation
named in and described in the foregoing certificate. That he has
read and executed the foregoing certificate and knows the contents
thereof, and that the statements contained therein are true.
JOHN H. TERRY /s/
Vice President
Sworn to before me this 4th day
of May, 1976.
JANET LEATHLEY /s/
JANET LEATHLEY
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-7461685
My Commission Expires March 30, 1978
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y.,
May 7, 1976
Case NO. 26970--Petition of NIAGARA MOHAWK POWER CORPORATION
for authority to file a Certificate of Amendment to its Certificate
of Incorporation changing each authorized but unissued share of
264
Preferred and Preference Stock, $100 par value, into four shares
with a par value of $25 per share.
* * *
The Public Service Commission hereby consents to and approves
this Certificate of Amendment of Certificate of Incorporation of
Niagara Mohawk Power Corporation under Section 805 of the Business
Corporation Law, executed May 4, 1976, in accordance with the order
of the Public Service Commission dated March 2, 1976.
By the Commission,
SAMUEL R. MADISON /s/
Secretary
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
265
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED SEPTEMBER 28, 1976
TAX $ NONE
FILING FEE $30.00
MARIO M. CUOMO
Secretary of State
By C.A.M.
Dated: September 23, 1976
LEBOEUF, LAMB, LEIBY & MACRAE
140 Broadway
New York, New York 10005
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
266
The name of the Corporation is Niagara Mohawk Power
Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was filed
in the Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law,
a Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, 267
without in any manner changing the 3,400,000 issued and outstanding
shares of Preferred Stock of the par value of $100 each, and the
general provisions applicable to all series of Preferred Stock set
forth in Paragraph 5 of Part D of Article IV of the Certificate of
Incorporation, as amended, were amended to fix the limited voting
rights of shares of Preferred Stock with a par value of $25 per
share at one-quarter of the vote per share of each share of
Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"RESOLVED, that consent be and it hereby is given to the issue
by the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is
hereby further amended by the addition of the following provisions
stating the number, designation, relative rights, preferences, and
limitations of a ninth series of Preferred Stock, to consist of
1,200,000 shares of the par value of $25 per share of the
authorized 9,600,000 shares of Preferred Stock of the Corporation
of the par value of $25 per share, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph (4I)(of Part
D of Article IV of the 1950 Certificate of Consolidation as amended
by Article V of the 2687
1950 Certificate of Amendment and subsequent amendments) and to
read as follows:
Particular Provisions Applicable to Preferred Stock, 9.75%
Series
(4I) The number, designations, relative rights, preference,
and limitations of the ninth series of the Preferred Stock of the
Corporation as fixed by the Board of Directors (in addition to
those set forth under the heading "General Provisions Applicable to
All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments) are as follows:
(A) The number of shares to constitute the ninth series shall
be 1,200,000 shares and the designation of such series shall be
"Preferred Stock, 9.75% Series".
(B) The dividend rate of the Preferred Stock, 9.75% Series
shall be nine and seventy-five one-hundredths per cent (9.75%) per
annum (computed on the basis of a 360-day year of twelve 30-day
months). The dividends on each share of the Preferred Stock, 9.75%
Series shall be cumulative from the date of the original issue
thereof.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 9.75% Series shall have
no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 9.75% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $27.4375 per
share through September 30, 1977, and thereafter at the following
prices, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared:
269
For the For the
Twelve Voluntary Twelve Voluntary
Months Liquidation Months Liquidation
Ended Price Ended Price
September 30 Per Share September 30 Per share
1978................ $27.31 1988................ $26.035
1979................ $27.1825 1989................ $25.9075
1980................ $27.055 1990................ $25.78
1981................ $26.9275 1991................ $25.65
1982................ $26.80 1992................ $25.52
1983................ $26.6725 1993................ $25.39
1984................ $26.545 1994................ $25.26
1985................ $26.4175 1995................ $25.13
1986................ $26.29 1996................ $25.00
1987................ $26.1625
(E) The sum per share for the Preferred Stock, 9.75% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 9.75% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $27.4375 per share through September 30, 1977,
and thereafter at the following redemption prices, in each case
plus an amount equal to the dividends, accrued and unpaid on such
share, whether or not earned or declared:
270
For the For the
Twelve Twelve
Months Redemption Months Redemption
Ended Price Ended Price
September 30 Per Share September 30 Per Share
1978................ $27.31 1988................ $26.035
1979................ $27.1825 1989................ $25.9075
1980................ $27.055 1990................ $25.78
1981................ $26.9275 1991................ $25.65
1982................ $26.80 1992................ $25.52
1983................ $26.6725 1993................ $25.39
1984................ $26.545 1994................ $25.26
1985................ $26.4175 1995................ $25.13
1986................ $26.29 1996................ $25.00;
1987................ $26.1625
provided, however, the Board of Directors of the Corporation
shall not prior to October 1, 1986 exercise its option to redeem
any shares of the Preferred Stock, 9.75% Series as a part of or in
anticipation of any refunding operation by the application,
directly or indirectly, of (a) borrowed funds or the proceeds of
the issue of any shares of Preferred Stock or any stock ranking
prior to or on a parity with the Preferred Stock, 9.75% Series as
to dividends or assets if such borrowed funds have an interest rate
or cost to the Corporation (calculated in accordance with accepted
financial practice), or such shares have a dividend rate or cost to
the Corporation so calculated, less than 9.75% per annum, or (b)
the proceeds of the issue of any shares of stock ranking as to
dividends or assets junior to the shares of the Preferred Stock,
9.75% Series (exclusive in any event of proceeds of the issue of
shares of Common Stock by the Corporation under its Employee
Savings Fund Plan and 271
Dividend Reinvestment and Stock Purchase Plan as in effect on June
30, 1976).
(G) The shares of the Preferred Stock, 9.75% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 9.75% Series, but shall not be convertible into or
exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the
Preferred Stock, 9.75% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on October 1, 1980 and on each October 1 thereafter (so long as any
shares of the Preferred Stock, 9.75% Series are outstanding)
through October 1, 1995 66,000 shares of Preferred Stock, 9.75%
Series (or the number of the shares of the Preferred Stock, 9.75%
Series then outstanding if less than 66,000), and on October 1,
1996 the balance of the shares of Preferred Stock, 9.75% Series
then outstanding, in each case at a redemption price of $25 per
share, plus an amount equal to the dividends accrued and unpaid on
such shares, whether or not earned or declared. No redemption of
shares of the Preferred Stock, 9.75% Series pursuant to subdivision
(F) above or subdivision (J) below, nor any purchase or other
acquisition of any shares of the Preferred Stock, 9.75% Series by
the Corporation, shall constitute a retirement of such shares in
lieu of or as a credit against any sinking fund retirement required
by this subdivision (H).
(I) Shares of the Preferred Stock, 9.75% Series shall be
called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 9.75%
Series annually commencing on October 1, 1980, pursuant to said
subdivision (H), shall be cumulative and, so 272
long as any shares of the Preferred Stock, 9.75% Series shall be
outstanding, the Corporation shall not declare any dividend on the
Common Stock or any other stock ranking as to dividends or assets
junior to, or pari passu with, the Preferred Stock, 9.75% Series or
make any payment on account of, or set apart money for a sinking or
other analogous fund for, the purchase, redemption or other
retirement of any shares of Common Stock or other such junior or
pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligation or stock of the Corporation (other than stock ranking
as to dividends and assets junior to the Preferred Stock, 9.75%
Series), unless at the date of declaration in the case of any such
dividend, or at the date of any such other payment, setting apart
or distribution, no sinking fund retirement required by said
subdivision (H) shall be in arrears.
(J) The Corporation may, at the option of the Board of
Directors of the Corporation, on October 1, 1980, and on each
October 1 thereafter to and including October 1, 1995 (but on not
more than five such dates), redeem 66,000 of the shares of the
Preferred Stock, 9.75% Series, or any lesser number of said shares
constituting a multiple of 6,600, in addition to shares then to be
redeemed for the sinking fund pursuant to subdivision (H) above, in
each case at a price of $25 per share, plus an amount equal to
dividends accrued and unpaid on such shares, whether or not earned
or declared, which privilege and option so to redeem shall be
noncumulative; provided, however, the Board of Directors of the
Corporation shall not exercise its option to redeem any shares of
the Preferred Stock, 9.75% Series pursuant to this subdivision (J)
as a part of or in anticipation of any refunding operation by the
application, directly or indirectly, of borrowed funds or the
proceeds of the issue of any shares of capital stock or other
securities of the Corporation or the proceeds of the sale of any
assets of the Corporation other than in the ordinary course of
business. The aggregate number of shares of the Preferred Stock,
9.75% Series which may be redeemed in all redemptions pursuant to
this subdivision (J) shall not, however, exceed 300,000 shares.
273
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 9.75% Series pursuant to
subdivision (F), (H) or (J) above, such redemption shall be made
(i) with respect to each holder of 5% or more of the then
outstanding shares of Preferred Stock, 9.75% Series pro rata
according to the numbers of shares held by such holders, provided
that only whole shares shall be selected for redemption, and (ii)
otherwise in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of the Part D of Article IV of the 1950 Certificate
of Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Notwithstanding the provisions of subdivisions (F) and (J)
above, the Board of Directors of the Corporation will not exercise
its option to redeem shares of Preferred Stock, 9.75% Series
pursuant to either of such subdivisions (i) so long as any shares
of Preferred Stock, 9.75% Series are held by any one of the two
original purchasers of such shares from the Corporation, unless
simultaneously therewith the Corporation shall optionally redeem
shares of its Preferred Stock, 7.45% Series having an aggregate par
value bearing the same or greater proportion to the aggregate par
value of all outstanding shares of its Preferred Stock, 7.45%
Series as the aggregate par value of the shares of Preferred Stock,
9.75% Series so to be redeemed bears to the aggregate par value of
all outstanding shares of Preferred Stock, 9.75% Series, and (ii)
unless all arrears in dividends on the shares of Preferred Stock,
9.75% Series and Preferred Stock, 7.45% Series and all arrears in
sinking fund retirements required by subdivision (H) above and
subdivision (H) of paragraph (4F) above entitled "Particular
Provisions Applicable to Preferred Stock, 7.45% Series" shall have
been paid or made, as the case may be.
(M) Shares of Preferred Stock, 9.75% Series redeemed (pursuant
to the sinking fund or otherwise), purchased or otherwise acquired
by the Corporation shall be cancelled and restored to the status
of authorized but unissued shares of Preferred Stock of the par
value of $25 per share without serial designation and may be
reissued by 274
the Corporation from time to time as Preferred Stock of any other
series of the par value of $25 per share as may be fixed from time
to time by the Board of Directors.
(N) The shares of the Preferred Stock, 9.75% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV
The amendments of the Certificate of Incorporation effected by
this Certificate were authorized by action of the Board of
Directors of the Corporation, pursuant to Section 502 of the
Business Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 23rd day of September, 1976.
/s/ JOHN H. TERRY
(JOHN H. TERRY)
Senior Vice President
/s/ HAROLD J. BOGAN
(HAROLD J. BOGAN)
Assistant Secretary
[CORPORATE SEAL]
__________
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
275
JOHN H. TERRY, being duly sworn, deposes and says that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
Sworn to before me this
23rd day of September, 1976.
/s/ CAROLYN SCHMIDT
Notary Public
CAROLYN SCHMIDT
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1978
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., September 28, 1976
CASE 27044--Petition of Niagara Mohawk Power Corporation for
authority to issue 1,200,000 shares of its Preferred Stock, 9.75%
Series, $25 Par Value.
* * * *
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION
OF NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE
BUSINESS CORPORATION LAW, executed September 23, 1976, in
accordance with the order of the Public Service Commission dated
September 14, 1976.
276
By the Commission,
/s/ SAMUEL R. MADISON
Secretary
[SEAL OF THE COMMISSION]
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Dated: January 27, 1978
STATE OF NEW YORK
277
DEPARTMENT OF STATE
Filed Jan. 27, 1978
Tax $ None
Filing Fee $30.--
Mario M. Cuomo
Secretary of State
By NC
LE BOEUF, LAMB, LEIBY & MACRAE
140 Broadway
New York, New York 10005
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power
Corporation.
278
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was
filed in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public
Service Corporation to Central New York Power Corporation was
filed in the Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Section 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of 279
Incorporation, as amended, were amended to fix the limited voting
rights of shares of Preferred Stock with a par value of $25 per
share at one-quarter of the vote per share of each share of
Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of
Paragraph (5) of Part D of Article IV, under the heading "General
Provisions Applicable to All Series of Preferred Stock", of the
1950 Certificate of Consolidation the holders of record of at least
a majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue
by the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is
hereby further amended by the addition of the following provisions
stating the number, designation, relative rights, preferences, and
limitations of a tenth series of Preferred Stock, to consist of
1,600,000 shares of the par value of $25 per share of the
authorized 9,600,000 shares of Preferred Stock of the Corporation
of the par value of $25 per share, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph (4J) (of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
280
Particular Provisions Applicable to Preferred Stock, 8 3/8%
Series
(4J) The number, designations, relative rights, preferences
and limitations of the tenth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the tenth additional
series shall be 1,600,000 shares and the designation of such series
shall be "Preferred Stock, 8 3/8% Series".
(B) The dividend rate of the Preferred Stock, 8 3/8% Series
shall be eight and three eighths per cent ( 8 3/8%) per annum
(computed on the basis of a 360-day year of twelve 30-day months).
The dividends on each share of the Preferred Stock, 8 3/8% Series
shall be cumulative from the date of the original issue thereof.
So long as any shares of the Preferred Stock, 8 3/8% Series shall
be outstanding, the Corporation shall not declare any dividend on
the Common Stock or any other stock ranking as to dividends or
assets junior to, or pari passu with (except dividends on other
series of Preferred Stock to the extent provided in subdivision (A)
of paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments), the Preferred Stock, 8 3/8%
Series or make any payment on account of, or set apart money for a
sinking or other analogous fund for, the purchase, redemption or
other retirement of any shares of Common Stock or other such junior
or pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock, 8
3/8% Series), unless at the date of such declaration in the case of
any such dividend, or at the date of any such other payment,
setting 281
apart or distribution, all dividends payable on the Preferred
Stock, 8 3/8% Series shall have been fully paid, or declared and
set apart for payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 8 3/8% Series shall
have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 8 3/8% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $27.09 per
share through March 31, 1979, and thereafter at the following
prices, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared:
For the For the
Twelve Voluntary Twelve Voluntary
Months Liquidation Months Liquidation
Ended Price Ended Price
March 31 Per Share March 31 Per Share
1980.................... $26.98 1990................... $25.88
1981.................... $26.87 1991................... $25.77
1982.................... $26.76 1992................... $25.66
1983.................... $26.65 1993................... $25.55
1984.................... $26.54 1994................... $25.44
1985.................... $26.43 1995................... $25.33
1986.................... $26.32 1996................... $25.22
1987.................... $26.21 1997................... $25.11
1988.................... $26.10 1998................... $25.00.
1989.................... $25.99
(E) The sum per share for the Preferred Stock, 8 3/8% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 8 3/8% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time at a
redemption price of $27.09 per share through March 31, 1979, and
thereafter at the following redemption prices, in each case plus an
amount equal to the dividends, accrued and unpaid on such share,
whether or not earned or declared:
For the For the
Twelve Twelve
Months Redemption Months Redemption
Ended Price Ended Price
March 31 Per Share March 31 Per Share
1980.................... $26.98 1990................ $25.88
1981.................... $26.87 1991................ $25.77
1982.................... $26.76 1992................ $25.66
1983.................... $26.65 1993................ $25.55
1984.................... $26.54 1994................ $25.44
1985.................... $26.43 1995................ $25.33
1986.................... $26.32 1996................ $25.22
1987.................... $26.21 1997................ $25.11
1988.................... $26.10 1998................ $25.00;
1989.................... $25.99
provided, however, the Board of Directors of the Corporation
shall not prior to March 31, 1988 exercise its option to redeem any
shares of the Preferred Stock, 8 3/8% Series as a part of or in
283
anticipation of any refunding operation by the application,
directly or indirectly, of (a) borrowed funds or the proceeds of
the issue of any shares of Preferred Stock or any stock ranking
prior to or on a parity with the Preferred Stock, 8 3/8% Series as
to dividends or assets if such borrowed funds have an interest rate
or cost to the Corporation (calculated in accordance with accepted
financial practice), or such shares have a dividend rate or cost to
the Corporation so calculated, less than 8 3/8% per annum, or (b)
the proceeds of the issue of any shares of stock ranking as to
dividends or assets junior to the shares of the Preferred Stock, 8
3/8% Series (exclusive in any event of proceeds of the issue of
shares of Common Stock by the Corporation under its Employees
Savings Fund Plan and Dividend Reinvestment and Stock Purchase Plan
and its Employee Stock Ownership Plan as in effect on September 30,
1977).
(G) The shares of the Preferred Stock, 8 3/8% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 8 3/8% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the
Preferred Stock, 8 3/8% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on April 1, 1983 and on each April 1 thereafter to and including
April 1, 1997 (so long as any Preferred Stock, 8 3/8% Series are
outstanding) 100,000 shares of the Preferred Stock, 8 3/8% Series
(or the number of shares of the Preferred Stock, 8 3/8% Series then
outstanding if less than 100,000) and on April 1, 1998 the balance
of the shares of Preferred Stock, 8 3/8% Series then outstanding,
in each case at a redemption price of $25 per share, plus an amount
equal to the dividends accrued and unpaid on such shares, whether
or not earned or declared. No redemption of shares of the
Preferred Stock, 8 3/8% Series pursuant to subdivision (F) above or
subdivision (J) below, nor any purchase or other acquisition of any
shares of the Preferred Stock, 8 3/8% Series by the Corporation,
shall constitute 284
a retirement of such shares in lieu of or as a credit against any
sinking fund retirement required by this subdivision (H).
(I) Shares of the Preferred Stock, 8 3/8% Series shall be
called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 8 3/8%
Series annually commencing on April 1, 1983, pursuant to said
subdivision (H), shall be cumulative and, so long as any shares of
the Preferred Stock, 8 3/8% Series shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to, or
pari passu with, the Preferred Stock, 8 3/8% Series or make any
payment on account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other retirement of
any shares of Common Stock or other such junior or pari passu
stock, or make any distribution in respect thereof, either directly
or indirectly, and whether in cash or property or in obligations or
stock of the Corporation (other than stock ranking as to dividends
and assets junior to the Preferred Stock 8 3/8% Series), unless at
the date of declaration in the case of any such dividend, or at the
date of any such other payment, setting apart or distribution, no
sinking fund retirement required by said subdivision (H) shall be
in arrears.
(J) The Corporation may, at the option of the Board of
Directors of the Corporation, on April 1, 1983, and on each April 1
thereafter to and including April 1, 1997, redeem 100,000 of the
shares of the Preferred Stock, 8 3/8% Series, or any lesser number
of said shares constituting a multiple of 10,000, in addition to
shares then to be redeemed for the sinking fund pursuant to
subdivision (H) above, in each case at a price of $25 per share,
plus an amount equal to 285
dividends accrued and unpaid on such shares, whether or not earned
or declared, which privilege and option so to redeem shall be
noncumulative; provided, however, the Board of Directors of the
Corporation shall not exercise its option to redeem any shares of
the Preferred Stock, 8 3/8% Series pursuant to this subdivision (J)
as a part of or in anticipation of any refunding operation by the
application, directly or indirectly, of borrowed funds or the
proceeds of the issue of any shares of capital stock or other
securities of the Corporation or the proceeds of the sale of any
assets of the Corporation other than in the ordinary course of
business. The aggregate number of shares of the Preferred Stock, 8
3/8% Series which may be redeemed in all redemptions pursuant to
this subdivision (J) shall not, however, exceed 400,000 shares.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 8 3/8% Series pursuant to
subdivision (F), (H) or (J) above, such redemption shall be made
(i) pro rata according to the numbers of shares held by each holder
of the then outstanding shares of Preferred Stock, 8 3/8% Series,
provided that only whole shares shall be selected for redemption,
and (ii) otherwise in the manner prescribed under the heading
"General Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Notwithstanding the provisions of subdivisions (F) and (J)
above, the Board of Directors of the Corporation will not exercise
its option to redeem shares of Preferred Stock, 8 3/8% Series
pursuant to either of such subdivisions (i) so long as any shares
of Preferred Stock, 8 3/8% Series are held by any one of the twelve
original purchasers of such shares from the Corporation, unless
simultaneously therewith the Corporation shall optionally redeem
shares of its Preferred Stock, 7.45% Series having an aggregate par
value bearing the same or greater proportion to the aggregate par
value of all outstanding shares of Preferred Stock, 7.45% Series as
the aggregate par value of the shares of Preferred Stock, 8 3/8%
286
Series so to be redeemed bears to the aggregate par value of all
outstanding shares of Preferred Stock, 8 3/8% Series, and (ii)
unless all arrears in dividends on the shares of Preferred Stock, 8
3/8% Series and Preferred Stock, 7.45% Series and Preferred Stock,
9.75% Series and all arrears in sinking fund retirements required
by subdivision (H) above and subdivision (H) of paragraph (4F)
above entitled "Particular Provisions Applicable to Preferred
Stock, 7.45% Series" and subdivision (H) of paragraph (4I) above
entitled "Particular Provisions Applicable to Preferred Stock,
9.75% Series" shall have been paid or made, as the case may be.
(M) Shares of Preferred Stock, 8 3/8% Series redeemed
(pursuant to the sinking fund or otherwise), purchased or otherwise
acquired by the Corporation shall be cancelled and restored to the
status of authorized but unissued shares of Preferred Stock of the
par value of $25 per share without serial designation and may be
reissued by the Corporation from time to time as Preferred Stock of
any other series of the par value of $25 per share as may be fixed
from time to time by the Board of Directors.
(N) The shares of the Preferred Stock, 8 3/8% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV
The amendments of the Certificate of Incorporation effected by
this Certificate were authorized by action of the Board of
Directors of the Corporation, pursuant to Section 502 of the
Business Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this
Certificate this 27th day of January, 1978 and affirm that the
statements contained herein are true under the penalties of
perjury.
287
JOHN H. TERRY /s/
(JOHN H. TERRY)
Senior Vice President
HAROLD J. BOGAN /s/
(HAROLD J. BOGAN)
Assistant Secretary
[CORPORATE SEAL]
__________
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true. Sworn to before me this 27th day of January, 1978.
CAROLYN SCHMIDT /s/
Notary Public
Carolyn Schmidt
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1978
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., January 27, 1978
288
CASE 27252--Petition of Niagara Mohawk Power Corporation for
authority to issue 1,600,000 shares of its Preferred Stock, 8 3/8%
Series, $25 Par Value.
* * * *
The Public Service Commission hereby consents to and approves
this CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION
OF NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE
BUSINESS CORPORATION LAW, executed January 27, 1978, in accordance
with the order of the Public Service Commission dated January 17,
1978.
By the Commission,
SAMUEL R. MADISON /s/
Secretary
[SEAL OF THE COMMISSION]
1
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Dated: May 2, 1978
State of New York
Department of State
Filed May 8--1978
Tax $10,000.--
Filing Fee $30.--
Mario M. Cuomo
Secretary of State
NC
LeBOEUF, LAMB, LEIBY & MacRAE
140 Broadway
New York, New York 10005
2
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
the Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is hereby
further amended to effect changes authorized by Section 801(b) of
the Business Corporation Law, to wit: to increase the aggregate
number of shares of Common Stock of the par value of $1 each which
the Corporation shall have the authority to issue by an additional
20,000,000 shares of such Common Stock, so that the authorized
3
shares of capital stock shall consist of 3,400,000 shares of
Preferred Stock with a par value of $100 each, 9,600,000 shares of
Preferred Stock with a par value of $25 each, 4,000,000 shares of
Preference Stock with a par value of $25 each and 85,000,000 shares
of Common Stock with a par value of $1 each.
IV
The Certificate of Incorporation of the Corporation, as amended, is
hereby amended so that Parts A and C of Article IV setting forth
the number of authorized shares and the number of shares of each
class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may have
is 102,000,000, of which 3,400,000 are to have a par value of $100
each, 13,600,000 are to have a par value of $25 each and 85,000,000
are to have a par value of $1 each."
"C. The shares of the Corporation are to be classified as follows:
3,400,000 shares are to be Preferred Stock with a par value of $100
each; 9,600,000 shares are to be Preferred Stock with a par value
of $25 each; 4,000,000 shares are to be Preference Stock with a par
value of $25 each; and 85,000,000 shares are to be Common Stock
with a par value of $1 each."
V
The stated capital of the Corporation will not be affected by this
Amendment to the Certificate of Incorporation of the Corporation.
VI
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of the majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which
4
such votes were cast with relation to the proceedings provided for
in this Amendment and neither the Certificate of Incorporation nor
any other certificate filed pursuant to law requires a larger
proportion of votes. Such votes were cast in person or by proxy at
a stockholders' meeting duly held at the offices of the Corporation
at No. 300 Erie Boulevard West, in the City of Syracuse, New York,
on the second day of May, 1978, at 10:30 o'clock, A.M., pursuant to
Section 605 of the Business Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 2nd day of May, 1978.
JOHN H. TERRY /s/
(JOHN H. TERRY)
Senior Vice President
HAROLD J. BOGAN /s/
(HAROLD J. BOGAN)
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN H. TERRY, being duly sworn, deposes and says, that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and knows
the contents thereof, and that the statements contained therein are
true.
5
JOHN H. TERRY /s/
(JOHN H. TERRY)
Sworn to before me this
2nd day of May, 1978.
CAROLYN SCHMIDT /s/
(Carolyn Schmidt)
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1980
6
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Dated: July 17, 1978
State of New York
Department of State
Filed July 13, 1978
Tax $ None
Filing Fee $30
By Mario M. Cuomo
Secretary of State
LEBOEUF, LAMB, LEIBY & MACRAE
140 Broadway
New York, New York 10005
7
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
8
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a first series of Preference Stock, to consist of
1,360,000 shares of the par value of $25 per share of the
authorized 4,000,000 shares of Preference Stock of the Corporation
of the par value of $25 per share, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as Paragraph (7A) (of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
Particular Provisions Applicable to Preference Stock, 7.75% Series
(7A) The number, designation, relative rights, preferences and
limitations of the first series of the Preference Stock of the
Corporation as fixed by the Board of Directors (in addition to
those set forth under the heading "Provisions Applicable to All
Series of Preference Stock" in Paragraph (7) of Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment and subsequent amendments) are
as follows:
9
(A) The number of shares to constitute the first series shall be
1,360,000 shares and the designation of such series shall be
"Preference Stock, 7.75% Series".
(B) The dividend rate of the Preference Stock, 7.75% Series shall
be seven and seventy-five one hundredths per cent (7.75%) per annum
(computed on the basis of a 360-day year of twelve 30-day months)
of the par value thereof. The dividends on each share of the
Preference Stock, 7.75% Series shall be payable when declared on
the last day of March, June, September and December in each year
and shall be cumulative from the date of the original issue
thereof. So long as any shares of the Preference Stock, 7.75%
Series shall be outstanding, the Corporation shall not declare any
dividend on the Common Stock or any other stock ranking as to
dividends or assets junior to, or pari passu with (except dividends
on other series of Preference Stock to the extent provided in
subdivision (A) of Paragraph (7) of Part D of Article IV of the
1950 Certificate of Consolidation as amended by Article V of the
1950 Certificate of Amendment and subsequent amendments), the
Preference Stock, 7.75% Series or make any payment on account of,
or set apart money for a sinking or other analogous fund for, the
purchase, redemption or other retirement of any shares of Common
Stock or other such junior or pari passu stock (except that
mandatory sinking fund payments on other series of Preference Stock
may be made pro rata with the sinking fund payments required by
subdivision (H) below), or make any distribution in respect
thereof, either directly or indirectly, and whether in cash or
property or in obligations or stock of the Corporation (other than
stock ranking as to dividends and assets junior to the Preference
Stock, 7.75% Series), unless at the date of such declaration in the
case of any such dividend, or at the date of any such other
payment, setting apart or distribution, all dividends payable on
the Preference Stock, 7.75% Series shall have been fully paid, or
declared and set apart for payment.
(C) Except as provided under the heading "Provisions Applicable to
All Series of Preference Stock" in Paragraph (7) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
10
Article V of the 1950 Certificate of Amendment and subsequent
amendments, the Preference Stock, 7.75% Series shall have no voting
rights whatsoever.
(D) The sum per share for the Preference Stock, 7.75% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $26.94 per
share through September 30, 1979, and thereafter at the following
prices, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared:
For the Twelve Voluntary
Months Liquidation
Ended Price
September 30 Per Share
1980............................. $26.61
1981............................. $26.29
1982............................. $25.83
1983............................. $25.55
1984............................. $25.28
1985............................. $25.00
(E) The sum per share for the Preference Stock, 7.75% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(F) The shares of the Preference Stock, 7.75% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after
September 30, 1981 and prior to October 1, 1982 at a redemption
price of $25.83 per share, and thereafter at the following
redemption prices, in each case plus an amount equal to the
dividends, accrued and unpaid on such share, whether or not earned
or declared:
11
For the
Twelve
Months Redemption
Ended Price
September 30 Per Share
1983......................... $25.55
1984......................... $25.28
1985......................... $25.00
G) The shares of the Preference Stock, 7.75% Series shall be
exchangeable on a share for share basis into other shares of
Preference Stock, 7.75% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the Preference
Stock, 7.75% Series the Corporation will, subject to the provisions
of subdivision (I) below, call for redemption and retire on each of
September 30, 1980 and September 30, 1981 140,000 shares of the
Preference Stock, 7.75% Series, on each of September 30, 1982 and
September 30, 1983 160,000 shares of the Preference Stock, 7.75%
Series, on September 30, 1984 240,000 shares of the Preference
Stock,7.75% Series and on September 30, 1985 the balance of the
shares of the Preference Stock, 7.75% Series then outstanding, in
each case at a redemption price of $25 per share, plus an amount
equal to the dividends accrued and unpaid on such shares, whether
or not earned or declared. No redemption of shares of the
Preference Stock, 7.75% Series pursuant to subdivision (F) above or
subdivision (J) below, nor any purchase or other acquisition of any
shares of the Preference Stock, 7.75% Series by the Corporation,
shall constitute a retirement of such shares in lieu of or as a
credit against any sinking fund retirement required by this
subdivision (H).
(I) Shares of the Preference Stock, 7.75% Series shall be called
for redemption for the sinking fund as required by subdivision (H)
above in the manner prescribed for redemption of shares of
Preference Stock under the heading "Provisions Applicable to All
Series of Preference
12
Stock" in Paragraph (7) of Part D of Article IV of the 1950
Certificate of Consolidation as amended by Article V of the 1950
Certificate of Amendment and subsequent amendments. Such
redemption shall be mandatory and not at the option of the Board of
Directors but shall be subject to any applicable restrictions of
law. Nevertheless, the obligations of the Corporation to redeem
shares of the Preference Stock, 7.75% Series annually commencing on
September 30, 1980, pursuant to said subdivision (H), shall be
cumulative and, so long as any shares of the Preference Stock,
7.75% Series shall be outstanding, the Corporation shall not
declare any dividend on the Common Stock or any other stock ranking
as to dividends or assets junior to, or pari passu with (except
dividends on other series of Preference Stock to the extent
provided in subdivision (A) of Paragraph (7) of Part D of Article
IV of the 1950 Certificate of Consolidation as amended by Article V
of the 1950 Certificate of Amendment and subsequent amendments),
the Preference Stock, 7.75% Series or make any payment on account
of, or set apart money for a sinking or other analogous fund for,
the purchase, redemption or other retirement of any shares of
Common Stock or other such junior or pari passu stock (except that
mandatory sinking fund payments on other series of Preference
Stock may be made pro rata with the sinking fund payments required
by subdivision (H) above), or make any distribution in respect
thereof, either directly or indirectly, and whether in cash or
property or in obligations or stock of the Corporation (other than
stock ranking as to dividends and assets junior to the Preference
Stock, 7.75% Series), unless at the date of declaration in the case
of any such dividend, or at the date of any such other payment,
setting apart or distribution, no sinking fund retirement required
by said subdivision (H) shall be in arrears.
(J) The Corporation may, at the option of the Board of Directors
of the Corporation, on September 30, 1980, and on each September 30
thereafter to and including September 30, 1984, redeem up to that
number of the shares of the Preference Stock, 7.75% Series then
required to be redeemed for the sinking fund pursuant to
subdivision (H) above, in each case at a price of $25 per share,
plus an amount
13
equal to dividends accrued and unpaid on such shares, whether or
not earned or declared, which privilege and option so to redeem
shall be noncumulative; provided, however, the Board of Directors
of the Corporation shall not exercise its option to redeem any
shares of the Preference Stock, 7.75% Series pursuant to this
subdivision (J) as a part of or in anticipation of any refunding
operation by the application, directly or indirectly, of borrowed
funds or the proceeds of the issue of any shares of capital stock
or other securities of the Corporation or the proceeds of the sale
of any assets of the Corporation other than in the ordinary course
of business; and provided further that the aggregate number of
shares of the Preference Stock, 7.75% Series which may be redeemed
in all redemptions pursuant to this subdivision (J) shall not
exceed 408,000 shares.
(K) In every case of redemption of less than all of the
outstanding shares of Preference Stock, 7.75% Series pursuant to
subdivision (F), (H) or (J) above, such redemption shall be made
(i) pro rata according to the numbers of shares held by each holder
of the then outstanding shares of Preference Stock, 7.75% Series,
provided that only whole shares shall be selected for redemption,
and (ii) otherwise in the manner prescribed under the heading
"Provisions Applicable to All Series of Preference Stock" in
Paragraph (7) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments. No redemption of less than
all of the outstanding shares of Preference Stock, 7.75% Series
shall be made pursuant to subdivision (F) or (J) above unless at
the time of making the same (i) all dividends payable on the
Preference Stock, 7.75% Series shall have been fully paid, or
declared and set apart for payment, and (ii) the Corporation shall
have made all redemptions theretofore required to have been made
pursuant to the provisions of subdivision (H) above.
(L) Shares of Preference Stock, 7.75% Series redeemed (pursuant to
the sinking fund or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preference Stock of the par value
14
of $25 per share without serial designation and may be reissued by
the Corporation from time to time in compliance with the provisions
of subdivision (M) below as Preference Stock of any other series of
the par value of $25 per share as may be fixed from time to time by
the Board of Directors.
(M) So long as any shares of the Preference Stock, 7.75% Series
are outstanding, the Corporation shall not, without the consent
(given in writing or by vote at a meeting called for that purpose
in the manner prescribed by the By-Laws of the Corporation) of the
holders of record of at least 80% of the total number of shares of
the Preference Stock, 7.75% Series then outstanding, issue any
shares of any other series of the Preference Stock or shares
ranking on a parity with them, or reissue any redeemed or exchanged
shares of the Preference Stock or any other series or shares
ranking on a parity with them, unless the Available Net Income
(determined as hereinafter provided) for any twelve consecutive
calendar months within the fifteen calendar months immediately
preceding the month of such issue or reissue shall have been in the
aggregate not less than one and three-tenths times the sum of (i)
the interest requirements (adjusted by provision for amortization
of debt discount and expense or of premium on debt, as the case may
be) for one year on all of the indebtedness of the Corporation and
its subsidiaries outstanding at the date of such proposed issue or
reissue (excluding any indebtedness proposed to be retired in
connection with such issue or reissue), (ii) the full dividend
requirements for one year on all outstanding shares (including
those then proposed to be issued or reissued but excluding any
shares proposed to be retired in connection with such issue or
reissue) of the Preferred Stock and the Preference Stock and all
other stock of the Corporation, if any, ranking prior to the
Corporation's Common Stock with respect to the payment of dividends
or upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary and (iii) all other
fixed charges payable by the Corporation for one year in respect of
all obligations of the Corporation and its subsidiaries existing at
the date of such proposed issue or reissue. "Available Net Income"
for any period shall mean the consolidated net income of the
Corporation and its subsidiaries for such period determined in
15
accordance with generally accepted accounting principles after
adding back (x) expenses of the type specified in clauses (i), (ii)
and (iii) of the preceding sentence and (y) provision for taxes in
respect of or measured by income or excess profits, all in the
respective amounts theretofore deducted in determining consolidated
net income for such period as aforesaid.
(N) Acceptance by the initial purchasers and holders of the
Preference Stock, 7.75% Series shall be taken as the only consent
required under the provisions of subdivision (D) of Paragraph (7)
of Part D of Article IV of the Certificate of Consolidation, as
heretofore amended, in order to permit the creation and issuance or
reissuance of shares of any one or more series of the Corporation's
Preferred Stock, but such consent is (i) limited in any event to
the number of shares of Preferred Stock (whether issued or
reissued) having the aggregate par value and other terms as
authorized and constituted on the date of the filing of the
Certificate of Amendment creating the Preference Stock, 7.75%
Series with the Secretary of State of the State of New York and
(ii) subject to compliance by the Company with the terms and
provisions of Paragraphs (5)(F)(6) and (5)(F)(7) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments as in effect on such date of filing (without regard to
any consent of the holders of Preferred Stock).
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 17th day of July, 1978.
JOHN J. TERRY /s/
16
(JOHN H. TERRY)
Senior Vice President
HAROLD J. BOGAN /s/
(HAROLD J. BOGAN)
Assistant Secretary
[CORPORATE SEAL]
_____________
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
Sworn to before me this
17 day of July, 1978.
JOHN H. TERRY /s/
(JOHN H. TERRY)
CAROLYN SCHMIDT /s/
Notary Public
CAROLYN SCHMIDT
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1980
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
17
Albany, N.Y., July 17, 1978
CASE 27318--Petition of Niagara Mohawk Power Corporation for
authority to issue 1,360,000 shares of its Preference Stock, 7.75%
Series, $25 Par Value.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed July 17, 1978, in accordance with the
orderof the Public Service Commission dated May 9, 1978.
By the Commission,
SAMUEL R. MADISON /s/
Secretary
[SEAL OF THE COMMISSION]
18
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Dated: March 3, 1980
LeBOEUF, LAMB, LEIBY & MacRAE
140 Broadway
New York, New York 10005
19
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President an
Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power 20
Corporation" was filed in the Department of State on January 5,
1950. Said Certificate of Consolidation is hereinafter sometimes
referred to as the "1950 Certificate of Consolidation".
Pursuant to Section 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not 21
exceeding at any one time outstanding $50,000,000 over and above
the principal amount of unsecured indebtedness otherwise permitted
by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of an eleventh series of Preferred Stock, to consist of
1,020,000 shares of the par value of $25 per share of the
authorized 9,600,000 shares of Preferred Stock of the Corporation
of the par value of $25 per share, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph (4K) (of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, Second 9.75%
Series
(4K) The number, designations, relative rights, preferences and
limitations of the eleventh additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the eleventh additional
series shall be 1,020,000 shares of the designation of such series
shall be "Preferred Stock, Second 9.75% Series".
22
(B) The dividend rate of the Preferred Stock, Second 9.75% Series
shall be nine and seventy-five one-hundredths per cent (9.75%) per
annum (computed on the basis of a 360-day year of twelve 30-day
months). The dividends on each share of the Preferred Stock,
Second 9.75% Series shall be cumulative from the date of the
original issue thereof. So long as any shares of the Preferred
Stock, Second 9.75% Series shall be outstanding, the Corporation
shall not declare any dividend on the Common Stock or any other
stock ranking as to dividends or assets junior to, or pari passu
with (except dividends on other series of Preferred Stock to the
extent provided in subdivision (A) of paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments), the Preferred Stock, Second 9.75% Series or make any
payment on account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other retirement of
any shares of Common Stock or other such junior or pari passu
stock, or make any distribution in respect thereof, either directly
or indirectly, and whether in cash or property or in obligations or
stock of the Corporation (other than stock ranking as to dividends
and assets junior to the Preferred Stock, Second 9.75% Series),
unless at the date of such declaration in the case of any such
dividend, or at the date of any such other payment, setting apart
or distribution, all dividends payable on the Preferred Stock,
Second 9.75% Series shall have been fully paid, or declared and set
apart for payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, Second 9.75% Series
shall have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, Second 9.75% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $27.44 per
share through March 31, 1984, and thereafter at the following
prices, in each case plus an amount equal to the dividends accrued
and unpaid 23
on such shares, whether or not earned or declared:
For the Voluntary
Twelve Months Liquidation
Ended March 31 Price Per Share
1985...............................$27.03
1986...............................$26.63
1987...............................$26.22
1988.............................. $25.82
1989.............................. $25.41
1990.............................. $25.00
(E) The sum per share for the Preferred Stock, Second 9.75% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(F) The shares of the Preferred Stock, Second 9.75% Series shall
be redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after March
31, 1983 and prior to April 1, 1984, at a redemption price of
$27.44 per share, and thereafter at the following redemption
prices, in each case plus an amount equal to the dividends, accrued
and unpaid on such share, whether or not earned or declared:
24
For the
Twelve Months Redemption Price
Ended March 31 Per Share
1985...............................$27.03
1986...............................$26.63
1987...............................$26.22
1988...............................$25.82
1989...............................$25.41
1990...............................$25.00
provided, however, the Board of Directors of the Corporation shall
not exercise its option to redeem any shares of the Preferred
Stock, Second 9.75% Series as a part of or in anticipation of any
refunding operation by the application, directly or indirectly, of
borrowed funds or the proceeds of the issue of any shares of
capital stock (exclusive in any event of proceeds of the issue of
shares of Common Stock by the Corporation under its Employee
Savings Fund Plan and Dividend Reinvestment and Stock Purchase Plan
and its Employee Stock Ownership Plan as in effect on December 31,
1979) if such borrowed funds have an interest rate or cost to the
Corporation (calculated in accordance with accepted financial
practice), or such shares have a dividend rate or cost to the
Corporation so calculated, less than 9.75% per annum.
(G) The shares of the Preferred Stock, Second 9.75% Series shall
be exchangeable on a share for share basis into other shares of
Preferred Stock, Second 9.75% Series, but shall not be convertible
into or exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the Preferred
Stock, Second 9.75% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on April 1, 1986 and on each April 1 thereafter to and including
April 1, 1989 (so long as any Preferred Stock, Second 9.75% Series
are outstanding) 204,000 shares of the Preferred Stock, Second
9.75% Series (or the number of the shares of the Preferred Stock,
Second 9.75% Series then outstanding if less than 204,000) and on
April 1,
25
1990 the balance of the shares of Preferred Stock, Second 9.75%
Series then outstanding, in each case at a redemption price of $25
per share, plus an amount equal to the dividends accrued and unpaid
on such shares, whether or not earned or declared. No redemption
of shares of the Preferred Stock, Second 9.75% Series pursuant to
subdivision (F) above or subdivision (J) below, nor any purchase or
other acquisition of any shares of the Preferred Stock, Second
9.75% Series by the Corporation, shall constitute a retirement of
such shares in lieu of or as a credit against any sinking fund
retirement required by this subdivision (H).
(I) Shares of the Preferred Stock, Second 9.75% Series shall be
called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, Second
9.75% Series annually commencing on April 1, 1986, pursuant to said
subdivision (H), shall be cumulative and, so long as any shares of
the Preferred Stock, Second 9.75% Series shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to, or
pari passu with, the Preferred Stock, Second 9.75% Series or make
any payment on account of, or set apart money for a sinking or
other analogous fund for, the purchase, redemption or other
retirement of any shares of Common Stock or other such junior or
pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock,
Second 9.75% Series), unless at the date of declaration in the case
of any such dividend, or at the date of any such other payment,
setting apart or distribution, no sinking fund retirement required
by said subdivision 26
(H) shall be in arrears.
(J) The Corporation may, at the option of the Board of Directors
of the Corporation, on April 1, 1986, and on each April 1
thereafter to and including April 1, 1989, redeem 204,000 of the
shares of the Preferred Stock, Second 9.75% Series, or any lesser
number of said shares constituting a multiple of 10,000, in
addition to shares then to be redeemed for the sinking fund
pursuant to subdivision (H) above, in each case at a price of $25
per share, plus an amount equal to dividends accrued and unpaid on
such shares, whether or not earned or declared, which privilege and
option so to redeem shall be noncumulative; provided, however, the
Board of Directors of the Corporation shall not exercise its option
to redeem any shares of the Preferred Stock, Second 9.75% Series
pursuant to this subdivision (J) as a part of or in anticipation of
any refunding operation by the application, directly or indirectly,
of (i) borrowed funds or the proceeds of the issue of any shares of
capital stock (exclusive in any event of proceeds of the issue of
shares of Common Stock by the Corporation under its Employee
Savings Fund Plan and Dividend Reinvestment and Stock Purchase Plan
and its Employee Stock Ownership Plan as in effect on December 31,
1979) if such borrowed funds have an interest rate or cost to the
Corporation (calculated in accordance with accepted financial
practice), or such shares have a dividend rate or cost to the
Corporation so calculated, less than 9.75% per annum, or (ii) the
proceeds of the sale of any assets of the Corporation other than in
the ordinary course of business. The aggregate number of shares of
the Preferred Stock, Second 9.75% Series which may be redeemed in
all redemptions pursuant to this subdivision (J) shall not,
however, exceed 300,000 shares.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, Second 9.75% Series pursuant
to subdivision (F), (H) or (J) above, such redemption shall be made
(i) pro rata according to the numbers of shares held by each holder
of the then outstanding shares of Preferred Stock, Second 9.75%
Series, provided that only whole shares shall be selected for
redemption, and (ii) otherwise in the manner prescribed under the
heading "General Provisions Applicable to All Series of Preferred
Stock" in Paragraph 27
(5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Notwithstanding the provisions of subdivisions (F) and (J)
above, the Board of Directors of the Corporation will not exercise
its option to redeem shares of Preferred Stock, Second 9.75% Series
pursuant to either of such subdivisions unless all arrears in
dividends on the shares of Preferred Stock, Second 9.75% Series and
all arrears in sinking fund retirements required by subdivision (H)
above shall have been paid or made, as the case may be.
(M) Shares of Preferred Stock, Second 9.75% Series redeemed
(pursuant to the sinking fund or otherwise), purchased or otherwise
acquired by the Corporation shall be cancelled and restored to the
status of authorized but unissued shares of Preferred Stock of the
par value of $25 per share without serial designation and may be
reissued by the Corporation from time to time as Preferred Stock of
any other series of the par value of $25 per share as may be fixed
from time to time by the Board of Directors.
(N) The shares of the Preferred Stock, Second 9.75% Series shall
be subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
28
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 3rd day of March, 1980.
JOHN H. TERRY
Senior Vice President
General Counsel and Secretary
[CORPORATE SEAL]
HAROLD J. BOGAN
Assistant Secretary
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
JOHN H. TERRY
Senior Vice President
General Counsel and Secretary
Sworn to before me this
3rd day of March, 1980.
ROBERT A. MURDOCK
Notary Public
ROBERT A. MURDOCK
Notary Public in the State of New York
Qualified in Onon. Co. No. 34-8063720
My Commission Expires March 30, 1980
29
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., March 3, 1980
CASE 27660 - Petition of Niagara Mohawk Power Corporation for
authority to issue shares of its Preferred Stock, $100 or $25 par
value of up to $30,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed March 3, 1980, in accordance with the
order of the Public Service Commission dated February 19, 1980.
By the Commission,
SAMUEL R. MADISON
Secretary
[SEAL OF THE COMMISSION]
30
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Dated: April 22, 1981
LeBOEUF, LAMB, LEIBY & MacRAE
140 Broadway
New York, New York 10005
31
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. 32
Said Certificate of Consolidation is hereinafter sometimes referred
to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the 33
principal amount of unsecured indebtedness otherwise permitted by
the provisions of Subdivision (E) of Paragraph (5) of Part D of
Article IV of the Certificate of Consolidation of the Corporation
filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a fourteenth series of Preferred Stock, to consist
of 250,000 shares of the par value of $100 per share of the
authorized 3,400,000 shares of Preferred Stock of the Corporation
of the par value of $100 per share, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph (4N)(of Part
D of Article IV of the 1950 Certificate of Consolidation as amended
by Article V of the 1950 Certificate of Amendment and subsequent
amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 12.75% Series
(4N) The number, designations, relative rights, preferences and
limitations of the fourteenth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the fourteenth additional
series shall be 250,000 shares and the designation of such series
shall be "Preferred Stock, 12.75% Series".
(B) The dividend rate of the Preferred Stock, 12.75% Series shall
be twelve and seventy-five one-hundredths per cent (12.75%) per
annum
34
(computed on the basis of a 360-day year of twelve 30-day months).
The dividends on each share of the Preferred Stock, 12.75% Series
shall be cumulative from the date of the original issue thereof.
So long as any shares of the Preferred Stock, 12.75% Series shall
be outstanding, the Corporation shall not declare any dividend on
the Common Stock or any other stock ranking as to dividends or
assets junior to, or pari passu with (except dividends on other
series of Preferred Stock to the extent provided in subdivision (A)
of paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments), the Preferred Stock, 12.75%
Series or make any payment on account of, or set apart money for a
sinking or other analogous fund for, the purchase, redemption or
other retirement of any shares of Common Stock or other such junior
or pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock,
12.75% Series), unless at the date of such declaration in the case
of any such dividend, or at the date of any such other payment,
setting apart or distribution, all dividends payable on the
Preferred Stock, 12.75% Series shall have been fully paid, or
declared and set apart for payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 12.75% Series shall
have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 12.75% Series
payable to the holders thereof upon the voluntary or involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared.
35
(E) The shares of the Preferred Stock, 12.75% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 12.75% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(F) The Corporation will call for redemption and retire on June
30, 1991 all of the shares of the Preferred Stock, 12.75% Series at
a price of $100 per share, plus an amount equal to the dividends
accrued and unpaid on such shares, whether or not earned or
declared.
(G) Shares of Preferred Stock, 12.75% Series redeemed, purchased
or otherwise acquired by the Corporation shall be cancelled and
restored to the status of authorized but unissued shares of
Preferred Stock of the par value of $100 per share without serial
designation and may be reissued by the Corporation from time to
time as Preferred Stock of any other series of the par value of
$100 per share as may be fixed from time to time by the Board of
Directors.
(H) The shares of the Preferred Stock, 12.75% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 22nd day of April, 1981.
JOHN H. TERRY
Senior Vice President
General Counsel and Secretary
36
HAROLD J. BOGAN
[CORPORATE SEAL] Assistant Secretary
_____________
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
JOHN H. TERRY
Senior Vice President, General
Counsel and Secretary
Sworn to before me this
22nd day of April, 1981.
CAROLYN SCHMIDT
Notary Public
CAROLYN SCHMIDT
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1982
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
37
Albany, N.Y., April 22, 1981
CASE 27923--Petition of Niagara Mohawk Power Corporation for
authority to issue shares of one or more new series of preferred
stock $100 and/or $25 par value, having an aggregate par value of
up to $40,000,000.
* * * *
The Public Service Commission hereby consents to and approve this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed April 22, 1981, in accordance with the
order of the Public Service Commission dated April 22, 1981.
By the Commission,
SAMUEL R. MADISON
Secretary
[SEAL OF THE COMMISSION]
38
12.25% Series
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Dated: March 30, 1981
LeBOEUF, LAMB, LEIBY & MacRAE
140 Broadway
New York, New York 10005
39
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. 40
Said Certificate of Consolidation is hereinafter sometimes referred
to as the "1950 Certificate of Consolidation."
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment."
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not 41
exceeding at any one time outstanding $50,000,000 over and above
the principal amount of unsecured indebtedness otherwise permitted
by the provisions of Subdivision (E) of Paragraph (5) of Part D of
Aticle IV of the Certificate of Consolidation of the Corporation
filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a twelfth additional series of Preferred Stock, to
consist of 700,000 shares of the par value of $25 per share of the
authorized 9,600,000 shares of Preferred Stock of the Corporation
of the par value of $25 per share, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph 4(L)(of Part
D of Article IV of the 1950 Certificate of Consolidation as amended
by Article V of the 1950 Certificate of Amendment and subsequent
amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 12.25% Series
4(L) The number, designations, relative rights, preferences and
limitations of the twelfth additional series of the Preferred Stock
of the Corporation as fixed by the Board of Directors (in addition
to those set forth under the heading "General Provisions Applicable
to All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments) are as follows:
(A) The number of shares to constitute the twelfth additional
series shall be 700,000 shares and the designation of such series
shall be "Preferred Stock, 12.25% Series".
(B) The dividend rate of the Preferred Stock, 12.25% Series shall
be twelve and twenty-five one-hundredths per cent (12.25%) per
annum
42
(computed on the basis of a 360-day year of twelve 30-day months).
The dividends on each share of the Preferred Stock, 12.25% Series
shall be cumulative from the date of the original issue thereof.
So long as any shares of the Preferred Stock, 12.25% Series shall
be outstanding, the Corporation shall not declare any dividend on
the Common Stock or any other stock ranking as to dividends or
assets junior to, or pari passu with (except dividends on other
series of Preferred Stock to the extent provided in subdivision (A)
of paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments), the Preferred Stock, 12.25%
Series or make any payment on account of, or set apart money for a
sinking or other analogous fund for, the purchase, redemption or
other retirement of any shares of Common Stock or other such junior
or pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock,
12.25% Series), unless at the date of such declaration in the case
of any such dividend, or at the date of any such other payment,
setting apart or distribution, all dividends payable on the
Preferred Stock, 12.25% Series shall have been fully paid, or
declared and set apart for payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 12.25% Series shall
have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 12.25% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $28.06 per
share through March 31, 1982, and thereafter at the following
prices, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared:
43
For the Voluntary
Twelve Months Liquidation
Ended March 31 Price Per Share
1983............................. $27.90
1984............................. $27.74
1985............................. $27.58
1986............................. $27.42
1987............................. $27.26
1988............................. $27.10
1989............................. $26.93
1990............................. $26.77
1991............................. $26.61
1992............................. $26.45
For the Voluntary
Twelve Months Liquidation
Ended March 31 Price Per Share
1993............................. $26.29
1994............................. $26.13
1995............................. $25.97
1996............................. $25.81
1997............................. $25.64
1998............................. $25.48
1999............................. $25.32
2000............................. $25.16
2001............................. $25.00
(E) The sum per share for the Preferred Stock, 12.25% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 12.25% Series shall be
redeemable at the option of the Board of Directors of the
Corporation,
44
either as a whole or in part, at any time after March 31, 1991 and
prior to April 1, 1992 at a redemption price of $26.45 per share,
and thereafter at the following redemption prices, in each case
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared:
For the
Twelve Months Redemption
Ended March 31 Price Per Share
1993.............................. $26.29
1994.............................. $26.13
1995.............................. $25.97
1996.............................. $25.81
1997.............................. $25.64
1998.............................. $25.48
1999.............................. $25.32
2000.............................. $25.16
2001.............................. $25.00
provided, however, that the Board of Directors of the Corporation
will not exercise its option to redeem shares of the Preferred
Stock, 12.25% Series pursuant to this subdivision (F) unless
simultaneously therewith the Corporation shall optionally redeem
shares of its Preferred Stock 12.50% Series having an aggregate par
value bearing the same proportion to the aggregate par value of all
outstanding shares of its Preferred Stock, 12.50% Series as the
aggregate par value of the shares of Preferred Stock 12.25% Series
so to be redeemed bears to the aggregate par value of all
outstanding shares of Preferred Stock, 12.25% Series.
(G) The shares of the Preferred Stock, 12.25% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 12.25% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
45
(H) As a sinking fund with respect to the shares of the Preferred
Stock, 12.25% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on March 31, 1987 and on each March 31 thereafter to and including
March 31, 2000 (so long as any shares of the Preferred Stock,
12.25% Series are outstanding) 43,060 shares of the Preferred
Stock, 12.25% Series (or the number of the shares of the Preferred
Stock, 12.25% Series then outstanding if less than 43,060) and on
March 31, 2001 the balance of the shares of Preferred Stock, 12.25%
Series then outstanding, in each case at a redemption price of $25
per share, plus an amount equal to the dividends accrued and unpaid
on such shares, whether or not earned or declared. No redemption
of shares of the Preferred Stock, 12.25% Series pursuant to
subdivision (F) above, nor any purchase or other acquisition of any
shares of the Preferred Stock, 12.25% Series by the Corporation,
shall constitute a retirement of such shares in lieu of or as a
credit against any sinking fund retirement required by this
subdivision (H).
(I) Shares of the Preferred Stock, 12.25% Series shall be called
for redemption for the sinking fund as required by subdivision (H)
above in the manner prescribed for redemption of shares of
Preferred Stock under the heading "General Provisions Applicable to
All Series of Preferred Stock" in paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments. Such redmeption shall be mandatory and not at the
option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 12.25%
Series annually commencing on March 31, 1987, pursuant to said
subdivision (H), shall be cumulative and, so long as any shares of
the Preferred Stock, 12.25% Series shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to, or
pari passu with, the Preferred Stock, 12.25% Series or make any
payment on account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other retirement of
any shares of Common Stock or other such junior or pari passu
stock, or make any distribution in respect thereof, either 46
directly or indirectly, and whether in cash or property or in
obligations or stock of the Corporation (other than stock ranking
as to dividends and assets junior to the Preferred Stock, 12.25%
Series), unless at the date of declaration in the case of any such
dividend, or at the date of any such other payment, setting apart
or distribution, no sinking fund retirement required by said
subdivision (H) shall be in arrears.
(J) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 12.25% Series pursuant to
subdivision (F) or (H) above, such redemption shall be made (i) pro
rata according to the numbers of shares held by each holder of the
then outstanding shares of Preferred Stock, 12.25% Series, provided
that only whole shares shall be selected for redemption, and (ii)
otherwise in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(K) Shares of Preferred Stock, 12.25% Series redeemed (pursuant to
the sinking fund or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preferred Stock of the par value
of $25 per share without serial designation and may be reissued by
the Corporation from time to time as Preferred Stock of any other
series of the par value of $25 per share as may be fixed from time
to time by the Board of Directors.
(L) The shares of the Preferred Stock, 12.25% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
47
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 30th day of March, 1981.
JOHN M. HAYNES
Senior Vice President
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
_____________
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN M. HAYNES, being duly sworn, deposes and says he is a Senior
Vice President of Niagara Mohawk Power Corporation, the corporation
named in and described in the foregoing Certificate, that he has
read and executed the foregoing Certificate and knows the contents
thereof and that the statements contained therein are true.
JOHN M. HAYNES
Sworn to before me this
30th day of March, 1981.
TERRY C. PELSTER
Notary Public
48
TERRY C. PELSTER
Notary Public, State of New York
No. 31-4654823
Qualified in New York County
Commission Expires March 30, 1983
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., March 31, 1981
CASE 27769--Application of Niagara Mohawk Power Corporation for
Authority to Issue up to $40,000,000 Aggregate Par Value of One or
More New Series of its Preferred Stock, $100 or $25 Par Value.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed March 30, 1981, in accordance with the
order of the Public Serive Commission dated March 26, 1981.
By the Commission,
SAMUEL R. MADISON
Secretary
[SEAL OF THE COMMISSION]
49
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_______________________
Dated: May 5, 1981
LeBOEUF, LAMB, LEIBY & MacRAE
140 Broadway
New York, New York 10005
50
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
____________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
the Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is hereby
further amended to effect changes authorized by Section 801(b) of
the Business Corporation Law, to wit: to increase the aggregate
number of shares of Common Stock of the par value of $1 each which
the Corporation shall have the authority to issue by an additional
40,000,000 shares of such Common Stock, so that the authorized
shares of capital stock shall consist of 3,400,000 shares 51
of Preferred Stock with a par value of $100 each, 9,600,000 shares
of 51
Preferred Stock with a par value of $25 each, 4,000,000 shares of
Preference Stock with a par value of $25 each and 125,000,000
shares of Common Stock with a par value of $1 each.
IV
The Certificate of Incorporation of the Corporation, as amended, is
hereby amended so that Parts A and C of Article IV setting forth
the number of authorized shares and the number of shares of each
class, as so amended, read as follows:
"IV.A. The total number of shares which the Corporation may have
is 142,000,000, of which 3,400,000 are to have a par value of $100
each, 13,600,000 are to have a par value of $25 each and
125,000,000 are to have a par value of $1 each."
"C. The shares of the Corporation are to be classified as follows:
3,400,000 shares are to be Preferred Stock with a par value of $100
each; 9,600,000 shares are to be Preferred Stock with a par value
of $25 each; 4,000,000 shares are to be Preference Stock with a par
value of $25 each; and 125,000,000 shares are to be Common Stock
with a par value of $1 each."
V
The stated capital of the Corporation will not be affected by this
Amendment to the Certificate of Incorporation of the Corporation.
VI
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the votes cast in person or by
proxy of the holders of record of the majority of the outstanding
shares of the Corporation entitled to vote at the stockholders'
meeting at which such votes were cast with relation to the
proceedings provided for in this Amendment and neither the
Certificate of Incorporation nor any other certificate filed
pursuant to law requires a larger proportion 52
of votes. Such votes were cast in person or by proxy at a
stockholders' meeting duly held at the offices of the Corporation
at No. 300 Erie Boulevard West, in the City of Syracuse, New York,
on the fifth day of May, 1981, at 10:30 o'clock, A.M., pursuant to
Section 605 of the Business Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 5th day of May, 1981.
JOHN H. TERRY
Senior Vice President
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN H. TERRY, being duly sworn, deposes and says, that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing certificate.
That he has read and executed the foregoing certificate and knows
the contents thereof, and that the statements contained therein are
true.
JOHN H. TERRY
Sworn to before me this
5th day of May, 1981.
CAROLYN SCHMIDT
CAROLYN SCHMIDT
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1982
53
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
______________________
Dated: April 22, 1982
LeBOEUF, LAMB, LEIBY & MacRAE
140 Broadway
New York, New York 10005
54
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. 55
Said Certificate of Consolidation is hereinafter sometimes referred
to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 which were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the 56
principal amount of unsecured indebtedness otherwise permitted by
the provisions of Subdivision (E) of Paragraph (5) of Part D of
Article IV of the Certificate of Consolidation of the Corporation
filed January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a fifteenth additional series of Preferred Stock, to
consist of 800,000 shares of the par value of $25 per share of the
authorized 9,600,000 shares of Preferred Stock of the Corporation
of the par value of $25 per share, as fixed by the Board of
Directors of the Corporation before the issuance of such series,
such provisions so added to be designated as paragraph 4(O) (of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 15% Series
4(O) The number, designation, relative rights, preferences and
limitations of the fifteenth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the fifteenth additional
series shall be 800,000 shares and the designation of such series
shall be "Preferred Stock, 15% Series".
(B) The dividend rate of the Preferred Stock, 15% Series shall be
fifteen per cent (15%) per annum (computed on the basis of a 360-
day year of twelve 30-day months). The dividends on each share of
the 57
Preferred Stock, 15% Series shall be cumulative from the date of
the
original issue thereof. So long as any shares of the Preferred
Stock, 15% Series shall be outstanding, the Corporation shall not
declare any dividend on the Common Stock or any other stock ranking
as to dividends or assets junior to the Preferred Stock, 15%
Series, or make any payment on account of, or set apart money for a
sinking or other analogous fund for, the purchase, redemption or
other retirement of any shares of Common Stock or other such junior
stock, or make any distribution in respect thereof, either directly
or indirectly, and whether in cash or property or in obligations or
stock of the Corporation (other than stock ranking as to dividends
and assets junior to the Preferred Stock, 15% Series), unless at
the date of such declaration in the case of any such dividend, or
at the date of any such other payment, setting apart or
distribution, all dividends payable on the Preferred Stock, 15%
Series shall have been fully paid, or declared and set apart for
payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 15% Series shall have
no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 15% Series payable
to the holders thereof upon the voluntary dissolution, liquidation
or winding up of the Corporation shall be $28.75 per share through
March 31, 1983, and thereafter at the following prices, in each
case plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared:
58
For the Twelve Months Voluntary Liquidation
Ended March 31, Price Per Share
1984......................................... $28.59
1985......................................... $28.44
1986......................................... $28.28
1987......................................... $28.13
1988......................................... $27.97
1989......................................... $27.81
1990......................................... $27.66
1991......................................... $27.50
1992......................................... $27.34
1993......................................... $27.19
1994......................................... $27.03
1995......................................... $26.88
1996......................................... $26.72
1997......................................... $26.56
1998......................................... $26.41
For the Twelve Months Voluntary Liquidation
Ended March 31, Price Per Share
1999......................................... $26.25
2000......................................... $26.09
2001......................................... $25.94
2002......................................... $25.78
2003......................................... $25.63
2004......................................... $25.47
2005......................................... $25.31
2006......................................... $25.16
2007......................................... $25.00
(E) The sum per share for the Preferred Stock, 15% Series payable
to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
59
(F) The shares of the Preferred Stock, 15% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after
issuance and prior to April 1, 1983 at a redemption price of $28.75
per share, and thereafter at the following redemption prices, in
each case plus an amount equal to the dividends accrued and unpaid
on such share, whether or not earned or declared:
For the Twelve Months Optional Redemption
Ended March 31, Price Per Share
1984......................................... $28.59
1985......................................... $28.44
1986......................................... $28.28
1987......................................... $28.13
1988......................................... $27.97
1989......................................... $27.81
1990......................................... $27.66
1991......................................... $27.50
1992......................................... $27.34
1993......................................... $27.19
1994......................................... $27.03
1995......................................... $26.88
1996......................................... $26.72
1997......................................... $26.56
1998......................................... $26.41
1999......................................... $26.25
2000......................................... $26.09
2001......................................... $25.94
For the Twelve Months Optional Redemption
Ended March 31, Price Per Share
2002......................................... $25.78
2003......................................... $25.63
2004......................................... $25.47
2005......................................... $25.31
2006......................................... $25.16
60
2007......................................... $25.00
provided, however, that the Board of Directors of the Corporation
shall not prior to April 1, 1987 exercise its option to redeem any
shares of the Preferred Stock, 15% Series as a part of or in
anticipation of any refunding operation by the application,
directly or indirectly, of borrowed funds or the proceeds of the
issue of any shares of Preferred Stock or any stock ranking prior
to or on a parity with the Preferred Stock, 15% Series as to
dividends or assets if such borrowed funds have an interest rate or
cost to the Corporation (calculated in accordance with accepted
financial practice), or such shares have a dividend rate or cost to
the Corporation so calculated, less than 15% per annum.
(G) The shares of the Preferred Stock, 15% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 15% Series, but shall not be convertible into or
exchangeable for other securities of the Corporation.
(H) As a first sinking fund with respect to the shares of the
Preferred Stock, 15% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on March 31, 1987 and on each March 31 thereafter to and including
March 31, 2006 (so long as any shares of the Preferred Stock, 15%
Series are outstanding) 40,000 shares of the Preferred Stock, 15%
Series (or the number of the shares of the Preferred Stock, 15%
Series then outstanding if less than 40,000) and on March 31, 2007
the balance of the shares of Preferred Stock, 15% Series then
outstanding, in each case at a redemption price of $25 per share,
plus an amount equal to the dividends accrued and unpaid on such
shares, whether or not earned or declared. As a second sinking
fund with respect to the shares of the Preferred Stock, 15% Series
the Corporation will, subject to the provisions of subdivision (I)
below, call for redemption and retire on March 31, 1987 and on each
March 31 thereafter to and including March 31, 2006 (so long as any
shares of the Preferred Stock, 15% Series are outstanding) 40,000
shares of the Preferred Stock, 15% Series (or the number of the
shares of the Preferred Stock, 15% Series then outstanding if less
than 40,000 61
after giving effect to any redemption then being made for the first
sinking fund), in each case at a redemption price of $25 per share
plus an amount equal to the dividends accrued and unpaid on such
shares, whether or not earned or declared; provided, however, that
the Corporation may solicit from the holders of the Preferred
Stock, 15% Series their consent that such second sinking fund
redemption not be made on any particular March 31, and if the
holders of record of at least two-thirds of the shares of the
Preferred Stock, 15% Series then outstanding shall give such
consent prior to the time notice of such redemption would otherwise
be required to be given to such holders by the Corporation (which
consent shall be given in writing or by vote at a meeting called
for that purpose in the manner prescribed by the By-Laws of the
Corporation), then the Corporation shall not have any obligations
to make such second sinking fund redemption and no such redemption
shall be made. The Corporation may solicit such a consent with
respect to any one or more of the second sinking fund redemptions
but no such solicitation shall be made more than 180 days prior to
the March 31 on which such redemption would otherwise be required
to be made. No redemption of shares of the Preferred Stock, 15%
Series pursuant to subdivision (F) above, nor any purchase or other
acquisition of any shares of the Preferred Stock, 15% Series by the
Corporation, shall constitute a retirement of such shares in lieu
of or as a credit against any sinking fund retirement required by
this subdivision (H).
(I) Shares of the Preferred Stock, 15% Series shall be called for
redemption for the first and second sinking funds as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 15% Series
annually commencing on March 31, 1987 for each of such sinking
funds, pursuant to said subdivision (H), shall be cumulative and,
so long as 62
any shares of the Preferred Stock, 15% Series shall be outstanding,
the Corporation shall not declare any dividend on the Common Stock
or any other stock ranking as to dividends or assets junior to, or
pari passu with, the Preferred Stock, 15% Series or make any
payment on account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other retirement of
any shares of Common Stock or other such junior or pari passu
stock, or make any distribution in respect thereof, either directly
or indirectly, and whether in cash or property or in obligations or
stock of the Corporation (other than stock ranking as to dividends
and assets junior to the Preferred Stock, 15% Series), unless at
the date of declaration in the case of any such dividend, or at the
date of any such other payment, setting apart or distribution, no
sinking fund retirement required by said subdivision (H) shall be
in arrears.
(J) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 15% Series pursuant to
subdivision (F) or (H) above, such redemption shall be made (i) pro
rata according to the numbers of shares held by each holder of the
then outstanding shares of Preferred Stock, 15% Series, provided
that only whole shares shall be selected for redemption and (ii)
otherwise in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(K) Shares of Preferred Stock, 15% Series redeemed (pursuant to
the sinking funds or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preferred Stock of the par value
of $25 per share without serial designation and may be reissued by
the Corporation from time to time as Preferred Stock of any other
series of the par value of $25 per share as may be fixed from time
to time by the Board of Directors.
(L) The shares of the Preferred Stock, 15% Series shall be subject
to the consent set forth in the last subparagraph of Paragraph II
of this Certificate to the same extent and with the same effect as
all 63
series of Preferred Stock outstanding on December 5, 1956 are so
subject. Subject to the required consent of the holders of the
Corporation's other series of Preferred Stock, acceptance by the
initial purchasers and holders of the certificates evidencing the
Preferred Stock, 15% Series shall constitute the giving of the only
consent required of the holders of the shares of the Preferred
Stock, 15% Series under the provisions of subdivision (E) of
Paragraph (5) of Part D of Article IV of the Certificate of
Consolidation, as heretofore amended, in order to permit the
issuance or assumption by the Corporation of unsecured indebtedness
in a total principal amount not in excess of twice the amount
otherwise permitted by the provisions of clause (1) of said
subdivision (E) without regard to the effect the consent set forth
in the last subparagraph of Paragraph II of this Certificate.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 22nd day of April, 1982.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
64
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
Sworn to before me this
22nd day of April, 1982.
CAROLYN SCHMIDT
Notary Public
CAROLYN SCHMIDT
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1984.
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., April 26, 1982
CASE 28149--Application of Niagara Mohawk Power Corporation for
Authority to Issue Shares of One or More New Series of Preferred
Stock, $100 and/or $25 Par Value, having an Aggregate Par Value of
up to $30,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
65
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed April 22, 1982, in accordance with the
order of the Public Service Commission dated April 21, 1982.
By the Commission,
SAMUEL R. MADISON
Secretary
[SEAL OF THE COMMISSION]
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
66
Under Section 805 of the Business Corporation Law
____________________
Dated: January 21, 1983
State of New York
Department of State
Filed January 24, 1983
Tax--None
Filing Fee--$60
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
67
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
____________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
68
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed 69
January 5, 1950."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a sixteenth additional series of Preferred Stock, to
consist of 1,200,000 shares of the par value of $25 per share of
the authorized 9,600,000 shares of Preferred Stock of the
Corporation of the par value of $25 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph (4P)
(of Part D of Article IV of the 1950 Certificate of Consolidation
as amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
Particular Provisions Applicable to Adjustable Rate Preferred
Stock, Series A
(4P) The number, designations, relative rights, preferences and
limitations of the sixteenth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the sixteenth additional
series shall be 1,200,000 shares and the designation of such series
shall be "Adjustable Rate Preferred Stock, Series A".
(B) The dividend rate of the Adjustable Rate Preferred Stock,
Series A shall be 10.00% per annum for the initial dividend period
and 1.60% below the Applicable Rate (as defined below) per annum
thereafter, but in no case less than 6.50% per annum or more than
13.50% per annum (computed in each case on the basis of a 360-day
year of twelve 70
30-day months). The dividends on each share of the Adjustable Rate
Preferred Stock, Series A shall be cumulative from the date of the
original issue thereof. So long as any shares of the Adjustable
Rate Preferred Stock, Series A shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to the
Adjustable Rate Preferred Stock, Series A or make any payment on
account of, or set apart money for a sinking or other analogous
fund for, the purchase, redemption or other retirement of any
shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Adjustable Rate Preferred Stock, Series A) unless at
the date of such declaration in the case of any such dividend, or
at the date of any such other payment, setting apart or
distribution, all dividends payable on the Adjustable Rate
Preferred Stock, Series A shall have been fully paid, or declared
and set apart for payment.
Except as provided below in this paragraph, the "Applicable Rate"
for any dividend period will be the highest of (i) the Treasury
Bill Rate, (ii) the Ten Year Constant Maturity Rate and (iii) the
Twenty Year Constant Maturity Rate (each as hereinafter defined)
for such dividend period. In the event that the Company determines
in good faith that for any reason one or more of such rates cannot
be determined for any dividend period, then the Applicable Rate for
such dividend period shall be the higher of whichever of such rates
can be determined. In the event that the Company determines in
good faith that none of such rates can be determined for any
dividend period, then the Applicable Rate for such dividend period
shall be the Applicable Rate in effect for the preceding dividend
period.
Except as provided below in this paragraph, the "Treasury Bill
Rate" for each dividend period will be the arithmetic average of
the two most recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one such rate
shall be published during the relevant Calendar Period (as defined
below)) for three-month U.S. Treasury bills, as published weekly by
the Federal 71
Reserve Board during the Calendar Period immediately prior to the
ten calendar days immediately preceding the last day of March,
June, September or December, as the case may be, prior to the
dividend period for which the dividend rate on the Adjustable Rate
Preferred Stock is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum market
discount rate during any such Calendar Period, then the Treasury
Bill Rate for the related dividend period shall be the arithmetic
average of the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount rate, if only
one such rate shall be published during the relevant Calendar
Period) for three-month U.S. Treasury bills as published weekly
during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Company. In
the event that a per annum market discount rate for three-month
U.S. Treasury bills shall not be published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury
Bill Rate for such dividend period shall be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate shall be published during the relevant Calendar Period) for
all of the U.S. Treasury bills then having maturities of not less
than 80 nor more than 100 days, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve
Board shall not publish such rates, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Company. In the event that the Company determines in good faith
that for any reason no such U.S. Treasury bill rates are published
as provided above during such Calendar Period, then the Treasury
Bill Rate for such dividend period shall be the arithmetic average
of the per annum market discount rates based upon the closing bids
during such Calendar Period for each of the issues of marketable
non-interest bearing U.S. Treasury securities with a maturity of
not less than 80 or more than 100 days from the date of each such
quotation, as quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally
available) to the Company by at least three recognized U.S.
Government securities dealers selected by the Company. In the
event that the Company 72
determines in good faith that for any reason the Company cannot
determine the Treasury Bill Rate for any dividend period as
provided above in this paragraph, the Treasury Bill Rate for such
dividend period shall be the arithmetic average of the per annum
market discount rates based upon the closing bids during the
related Calendar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a maturity of not
less than 80 or more than 100 days from the date of each such
quotation, as quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally
available) to the Company by at least three recognized U.S.
Government securities dealers selected by the Company.
Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each dividend period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only
one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
ten calendar days immediately preceding the last day of March,
June, September or December, as the case may be, prior to the
dividend period for which the dividend rate on the Adjustable Rate
Preferred Stock is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield,
if only one such Yield shall be published during such Calendar
Period), as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or agency
selected by the Company. In the event that a per annum Ten Year
Average Yield shall not be published by the Federal Reserve Board
or by any Federal Reserve Bank or by any U.S. Government department
or agency during such Calendar Period, then the Ten Year Constant
Maturity Rate for such dividend period shall be the arithmetic
average of the two most recent weekly per annum average yields to
maturity (or the one weekly average yield to 73
maturity, if only one such yield shall be published during such
Calendar Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special
Securities (as defined below)) then having maturities of not less
than eight or more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such yields, by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the
Company. In the event that the Company determines in good faith
that for any reason the Company cannot determine the Ten Year
Constant Maturity Rate for any dividend period as provided above in
this paragraph, then the Ten Year Constant Maturity Rate for such
dividend period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
or more than twelve years from the date of each such quotation, as
quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to
the Company by at least three recognized U.S. Government securities
dealers selected by the Company.
Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each dividend period shall be the
arithmetic average of the two most recent weekly per annum Twenty
Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
ten calendar days immediately preceding the last day of March,
June, September or December, as the case may be, prior to the
dividend period for which the dividend rate on the Adjustable Rate
Preferred Stock is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Twenty Year
Average Yield during such Calendar Period, then the Twenty Year
Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum Twenty
Year Average Yields (or the one weekly 74
per annum Twenty Year Average Yield, if only one such Yield shall
be published during such Calendar Period), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Company. In
the event that a per annum Twenty Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Twenty Year Constant Maturity Rate for
such dividend period shall be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or the one
weekly average yield to maturity, if only one such yield shall be
published during such Calendar Period) for all of the actively
traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) then having maturities of not less
than eighteen or more than twenty-two years, as published during
such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board shall not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency
selected by the Company. In the event that the Company determines
in good faith that for any reason the Company cannot determine the
Twenty Year Constant Maturity Rate for any dividend period as
provided above in this paragraph, then the Twenty Year Constant
Maturity Rate for such dividend period shall be the arithmetic
average of the per annum average yields to maturity based upon the
closing bids during such Calendar Period for each of the issues of
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity
date not less than eighteen or more than twenty-two years from the
date of each such quotation, as quoted daily for each business day
in New York City (or less frequently if daily quotations shall not
be generally available) to the Company by at least three recognized
U.S. Government securities dealers selected by the Company.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five one-hundredths of a percentage point.
As used herein, the term "Calendar Period" means a period of
fourteen calendar days; the term "Special Securities" means
securities which 75
can, at the option of the holder, be surrendered at face value in
payment of any Federal estate tax or which provide tax benefits to
the holder and are priced to reflect such tax benefits or which
were originally issued at a deep or substantial discount; the term
"Ten Year Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten years); and the
term "Twenty Year Average Yield" means the average yield to
maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of twenty
years).
(C) Except as provided under the heading "General Provisions
applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Adjustable Rate Preferred Stock, Series
A shall have no voting rights whatsoever.
(D) The sum per share for the Adjustable Rate Preferred Stock,
Series A payable to the holders thereof upon the voluntary
dissolution, liquidation or winding up of the Corporation shall be
$25.75 per share through March 31, 1993 and $25.00 per share
thereafter, in each case plus an amount equal to the dividends
accrued and unpaid on such share, whether or not earned or
declared.
(E) The sum per share for the Adjustable Rate Preferred Stock,
Series A payable to the holders thereof upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$25 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared.
(F) The shares of the Adjustable Rate Preferred Stock, Series A
shall be redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after March
31, 1988 and prior to April 1, 1993, at a redemption price of
$25.75 per share and thereafter at a redemption price of $25.00 per
share, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared.
76
(G) The shares of the Adjustable Rate Preferred Stock, Series A
shall be exchangeable on a share for share basis into other shares
of Adjustable Rate Preferred Stock, Series A, but shall not be
convertible into or exchangeable for other securities of the
Corporation.
(H) In every case of redemption of less than all of the
outstanding shares of Adjustable Rate Preferred Stock, Series A
pursuant to subdivision (F) above, such redemption shall be made
(i) pro rata according to the numbers of shares held by each holder
of the then outstanding shares of Adjustable Rate Preferred Stock,
Series A, provided that only whole shares shall be selected for
redemption, and (ii) otherwise in the manner prescribed under the
heading "General Provisions Applicable to All Series of Preferred
Stock" in Paragraph (5) of Part D of Article IV of the 1950
Certificate of Consolidation as amended by Article V of the 1950
Certificate of Amendment and subsequent amendments.
(I) Shares of Adjustable Rate Preferred Stock, Series A redeemed,
purchased or otherwise acquired by the Corporation shall be
cancelled and restored to the status of authorized but unissued
shares of Preferred Stock of the par value of $25 per share without
serial designation and may be reissued by the Corporation from time
to time as Preferred Stock of any other series of the par value of
$25 per share as may be fixed from time to time by the Board of
Directors.
(J) The shares of the Adjustable Rate Preferred Stock, Series A
shall be subject to the consent set forth in the last subparagraph
of Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
77
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 21st day of January, 1983.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
Sworn to before me this
21st day of January, 1983.
CAROLYN SCHMIDT
Notary Public
78
CAROLYN SCHMIDT
Notary Public In The State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1984
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., January 24, 1983
CASE 28202--Petition of Niagara Mohawk Power Corporation for
authority under Section 69 of the Public Service Law to issue
shares of one or more series of preferred stock, $100 and/or $25
par value, with aggregate par value not to exceed $30,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed January 21, 1983, in accordance with the
order of the Public Service Commission dated January 12, 1983.
By the Commission,
WILLIAM BARNES
Deputy
Secretary
[SEAL OF THE COMMISSION]
79
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________________
Dated: August 1, 1983
State of New York
Department of State
Filed August 3, 1983
Tax-None
Filing Fee--$60
80
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred 81
to as the "1950 Certificate of Consolidation".
Pursuant to Section 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the 82
provisions of Subdivision (E) of Paragraph (5) of Part D of Article
IV of the Certificate of Consolidation of the Corporation filed
January 5, 1950."
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of votes represented by the shares of
Preferred Stock of all series then outstanding adopted the
following resolution at a meeting called for that purpose and held
on May 3, 1983 in the manner prescribed by the By-Laws of the
Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the principal amount of unsecured indebtedness
presently permitted by the Company's Certificate of Consolidation
(the "Current Limitation") pursuant to the consent of the holders
of the Company's Preferred Stock on December 5, 1956 and (ii)
beginning January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences and
limitations of a seventeenth additional series of Preferred Stock,
to consist of 1,600,000 shares of the par value of $25 per share of
the authorized 9,600,000 shares of Preferred Stock of the
Corporation of the par value of $25 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph 4(Q)
(of Part D of Article IV of the 1950 Certificate of Consolidation
as amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
83
Particular Provisions Applicable to Preferred Stock, 10.75% Series
4(Q) The number, designation, relative rights, preferences and
limitation of the seventeenth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the seventeenth additional
series shall be 1,600,000 shares and the designation of such series
shall be "Preferred Stock, 10.75% Series".
(B) The dividend rate of the Preferred Stock, 10.75% Series shall
be ten and seventy-five hundredths per cent (10.75%) per annum
(computed on the basis of a 360-day year of twelve 30-day months).
The dividends on each share of the Preferred Stock, 10.75% Series
shall be cumulative from the date of the original issue thereof.
So long as any shares of the Preferred Stock, 10.75% Series shall
be outstanding, the Corporation shall not declare any dividend on
the Common Stock or any other stock ranking as to dividends or
assets junior to the Preferred Stock, 10.75% Series, or make any
payment on account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other retirement of
any shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Preferred Stock, 10.75% Series), unless at the date
of such declaration in the case of any such dividend, or at the
date of any such other payment, setting apart or distribution, all
dividends payable on the Preferred Stock, 10.75% Series shall have
been fully paid, or declared and set apart for payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part 84
D of Article IV of the 1950 Certificate of Consolidation as amended
by Article V of the 1950 Certificate of Amendment and subsequent
amendments, the Preferred Stock, 10.75% Series shall have no voting
rights whatsoever.
(D) The sum per share for the Preferred Stock, 10.75% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $27.69 per
share through June 30, 1984, and thereafter at the following
prices, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared:
For the Twelve Months Voluntary Liquidation
Ended June 30, Price Per Share
1985.............................................. $27.39
1986.............................................. $27.09
1987.............................................. $26.79
1988.............................................. $26.49
1989.............................................. $26.19
1990.............................................. $25.90
1991.............................................. $25.60
1992.............................................. $25.30
1993.............................................. $25.00
(E) The sum per share for the Preferred Stock, 10.75% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 10.75% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after June
30, 1988 and prior to July 1, 1989 at a redemption price of $26.19
per share, and thereafter at the following redemption prices, in
each case plus an amount equal to the dividends accrued and unpaid
on such share, whether or not earned or declared:
85
For the Twelve Months Optional Redemption
Ended June 30, Price Per Share
1990.............................................. $25.90
1991.............................................. $25.60
1992.............................................. $25.30
1993.............................................. $25.00
(G) The shares of the Preferred Stock, 10.75% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 10.75% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the Preferred
Stock, 10.75% Series the Corporation will, subject to the
provisions of subdivision (I) below, call for redemption and retire
on June 30, 1989 and on each June 30 thereafter to and including
June 30, 1992 (so long as any shares of the Preferred Stock, 10.75%
Series are outstanding) 320,000 shares of the Preferred Stock,
10.75% Series (or the number of the shares of the Preferred Stock,
10.75% Series then outstanding if less than 320,000) and on June
30, 1993 the balance of the shares of Preferred Stock, 10.75%
Series then outstanding, in each case at a redemption price of $25
per share, plus an amount equal to the dividends accrued and unpaid
on such shares, whether or not earned or declared. No redemption
of shares of the Preferred Stock, 10.75% Series pursuant to
subdivision (F) above or subdivision (J) below, nor any purchase or
other acquisition of any shares of the Preferred Stock, 10.75%
Series by the Corporation, shall constitute a retirement of such
shares in lieu of or as a credit against any sinking fund
retirement required by this subdivision (H).
(I) Shares of the Preferred Stock, 10.75% Series shall be called
for redemption for the sinking fund as required by subdivision (H)
above in the manner prescribed for redemption of shares of
Preferred Stock under the heading "General Provisions Applicable to
All Series of Preferred Stock" in paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments. Such redemption 86
shall be mandatory and not at the option of the Board of Directors
but shall be subject to any applicable restrictions of law.
Nevertheless, the obligations of the Corporation to redeem shares
of the Preferred Stock, 10.75% Series annually commencing on June
30, 1989 for such sinking fund, pursuant to said subdivision (H),
shall be cumulative and, so long as any shares of the Preferred
Stock, 10.75% Series shall be outstanding, the Corporation shall
not declare any dividend on the Common Stock or any other stock
ranking as to dividends or assets junior to, or pari passu with,
the Preferred Stock, 10.75% Series or make any payment on account
of, or set apart money for a sinking or other analogous fund for,
the purchase, redemption or other retirement of any shares of
Common Stock or other such junior or pari passu stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Preferred Stock, 10.75% Series), unless at the date
of declaration in the case of any such dividend, or at the date of
any such other payment, setting apart or distribution, no sinking
fund retirement required by said subdivision (H) shall be in
arrears.
(J) The Corporation may, at the option of the Board of Directors
of the Corporation, on June 30, 1989, and on each June 30
thereafter to and including June 30, 1992, redeem 320,000 of the
shares of the Preferred Stock, 10.75% Series, or any lesser number
of shares which shall constitute all of the shares of the Preferred
Stock, 10.75% Series then outstanding, in addition to shares then
to be redeemed for the sinking fund pursuant to subdivision (H)
above, in each case at a redemption price of $25 per share, plus an
amount equal to the dividends accrued and unpaid on such shares,
whether or not earned or declared, which privilege and option so to
redeem shall be noncumulative.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 10.75% Series pursuant to
subdivision (F), (H) or (J) above, such redemption shall be made
(i) pro rata according to the numbers of shares held by each holder
of the then
87
outstanding shares of Preferred Stock,10.75% Series, provided that
only whole shares shall be selected for redemption, and (ii)
otherwise in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Shares of Preferred Stock, 10.75% Series redeemed (pursuant to
the sinking fund or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preferred Stock of the par value
of $25 per share without serial designation and may be reissued by
the Corporation from time to time as Preferred Stock of any other
series of the par value of $25 per share as may be fixed from time
to time by the Board of Directors.
(M) The shares of the Preferred Stock, 10.75% Series shall be
subject to (i) the consent set forth in the penultimate
subparagraph of Paragraph II of this Certificate to the same extent
and with the same effect as all series of Preferred Stock
outstanding on December 5, 1956 are so subject, and (ii) the
consent set forth in the last subparagraph of Paragraph II of this
Certificate to the same extent and with the same effect as all
series of Preferred Stock outstanding on May 3, 1983 are so
subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 1st day of August, 1983.
JOHN M. HAYNES
Senior Vice President
88
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN M. HAYNES, being duly sworn, deposes and says that he is a
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
JOHN M. HAYNES
Senior Vice President
Sworn to before me this
1st day of August, 1983.
CAROLYN SCHMIDT
Notary Public
CAROLYN SCHMIDT
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4524990
My Commission Expires March 30, 1984
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., August 2, 1983
CASES 28454 and 28455--Petition of Niagara Mohawk Power Corporation
for Authority to Issue Shares of One or More New Series of
Preferred 89
Stock, $100 and/or $25 Par Value, having an Aggregate Par Value of
up to $50,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed August 1, 1983, in accordance with the
orders of the Public Service Commission each dated June 29, 1983.
By the Commission,
JOHN J. KELLIHER
Secretary
[SEAL OF THE COMMISSION]
90
$25 par value
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_______________________
Dated: December 22, 1983
State of New York
Department of State
Filed December 27, 1983
Tax--None
Filing Fee--$60
91
LEBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_______________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred 92
to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the 93
provisions of Subdivision (E) of Paragraph (5) of part D of Article
IV of the Certificate of Consolidation of the Corporation filed
January 5, 1950."
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of votes represented by the shares of
Preferred Stock of all series then outstanding adopted the
following resolution at a meeting called for that purpose and held
on May 3, 1983 in the manner prescribed by the By-Laws of the
Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the principal amount of unsecured indebtedness
presently permitted by the Company's Certificate of Consolidation
(the "Current Limitation") pursuant to the consent of the holders
of the Company's Preferred Stock on December 5, 1956 and (ii)
beginning January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of an eighteenth additional series of Preferred Stock,
to consist of 1,000,000 shares of the par value of $25 per share of
the authorized 9,600,000 shares of Preferred Stock of the
Corporation of the par value of $25 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph 4(R)
(of Part D of Article IV of the 1950 Certificate of Consolidation
as amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
94
Particular Provisions Applicable to Preferred Stock, 10.13% Series
($25 par value)
4(R) The number, designation, relative rights, preferences and
limitations of the eighteenth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the eighteenth additional
series shall be 1,000,000 shares and the designation of such series
shall be "Preferred Stock, 10.13% Series ($25 par value)".
(B) The dividend rate of the Preferred Stock, 10.13% Series ($25
par value) shall be ten and thirteen hundredths per cent (10.13%)
per annum (computed on the basis of a 360-day year of twelve 30-day
months). The dividends on each share of the Preferred Stock,
10.13% Series ($25 par value) shall be cumulative from the date of
the original issue thereof. So long as any shares of the Preferred
Sock, 10.13% Series ($25 par value) shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to the
Preferred Stock, 10.13% Series ($25 par value), or make any payment
on account of, or set apart money for a sinking or other analogous
fund for, the purchase, redemption or other retirement of any
shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Preferred Stock, 10.13% Series ($25 par value)),
unless at the date of such declaration in the case of any such
dividend, or at the date of any such other payment, setting apart
or distribution, all dividends payable on the Preferred Stock,
10.13% Series ($25 par value) shall have been fully paid, or
declared and set apart for payment.
95
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 10.13% Series ($25 par
value) shall have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 10.13% Series ($25
par value) payable to the holders thereof upon the voluntary
dissolution, liquidation or winding up of the Corporation shall be
$27.533 per share through December 31, 1984, and thereafter at the
following prices, in each case plus an amount equal to the
dividends accrued and unpaid on such share, whether or not earned
or declared:
For the Twelve Months Voluntary Liquidation
Ended December 31, Price Per Share
1985............................................ $27.252
1986............................................ $26.970
1987............................................ $26.689
1988............................................ $26.407
1989............................................ $26.126
1990............................................ $25.845
1991............................................ $25.563
1992............................................ $25.282
1993............................................ $25.000
(E) The sum per share for the Preferred Stock, 10.13% Series ($25
par value) payable to the holders thereof upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$25 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 10.13% Series ($25 par
value) shall be redeemable at the option of the Board of Directors
of the Corporation, either as a whole or in part, at any time after
December 31, 1987 and prior to January 1, 1989 at a redemption
price of $26.407 per share, and thereafter at the following
redemption prices, 96
in each case plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared:
For the Twelve Months Optional Redemption
Ended December 31, Price Per Share
1989............................................ $26.126
1990............................................ $25.845
1991............................................ $25.563
1992............................................ $25.282
1993............................................ $25.000
(G) The shares of the Preferred Stock, 10.13% Series ($25 par
value) shall be exchangeable on a share for share basis into other
shares of Preferred Stock, 10.13% Series ($25 par value), but shall
not be convertible into or exchangeable for other securities of the
Corporation.
(H) As a sinking fund with respect to the shares of the Preferred
Stock, 10.13% Series ($25 par value) the Corporation will, subject
to the provisions of subdivision (I) below, call for redemption and
retire (so long as any shares of the Preferred Stock, 10.13% Series
($25 par value) are outstanding) 100,000 shares of the Preferred
Stock, 10.13% Series ($25 par value)(or the number of the shares of
the Preferred Stock, 10.13% Series ($25 par value) then outstanding
if less than 100,000) on December 31, 1987 and on December 31,
1988, 75,000 shares of the Preferred Stock, 10.13% Series ($25 par
value) (or the number of the shares of the Preferred Stock, 10.13%
Series ($25 par value) then outstanding if less than 75,000) on
December 31, 1989, 100,000 shares of the Preferred Stock, 10.13%
Series ($25 par value)(or the number of the shares of the Preferred
Stock, 10.13% Series ($25 par value) then outstanding if less than
100,000) on December 31, 1990 and on December 31, 1991, 325,000
shares of the Preferred Stock, 10.13% Series ($25 par value)(or the
number of the shares of the Preferred Stock, 10.13% Series ($25 par
value) then outstanding if less than 325,000) on December 31, 1992
and the balance of the shares of Preferred Stock, 10.13% Series
($25 par value) then outstanding on December 31, 1993, in each case
at a 97
redemption price of $25 per share, plus an amount equal to the
dividends accrued and unpaid on such shares, whether or not earned
or declared. No redemption of shares of the Preferred Stock,
10.13% Series ($25 par value) pursuant to subdivision (F) above,
nor any purchase or other acquisition of any shares of the
Preferred Stock, 10.13% Series ($25 par value) by the Corporation,
shall constitute a retirement of such shares in lieu of or as a
credit against any sinking fund retirement required by this
subdivision (H).
(I) Shares of the Preferred Stock, 10.13% Series ($25 par value)
shall be called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 10.13%
Series ($25 par value) annually commencing on December 31, 1987 for
such sinking fund, pursuant to said subdivision (H), shall be
cumulative and, so long as any shares of the Preferred Stock,
10.13% Series ($25 par value) shall be outstanding, the Corporation
shall not declare any dividend on the Common Stock or any other
stock ranking as to dividends or assets junior to, or pari passu
with, the Preferred Stock, 10.13% Series ($25 par value) or make
any payment on account of, or set apart money for a sinking or
other analogous fund for, the purchase, redemption or other
retirement of any shares of Common Stock or other such junior or
pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock,
10.13% Series ($25 par value)), unless at the date of declaration
in the case of any such dividend, or at the date of any such other
payment, setting apart or distribution, no sinking fund retirement
required by said subdivision (H) shall be in arrears.
98
(J) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 10.13% Series ($25 par
value) pursuant to subdivision (F) or (H) above, such redemption
shall be made (i) pro rata according to the numbers of shares held
by each holder of the then outstanding shares of Preferred Stock,
10.13% Series ($25 par value), provided that only whole shares
shall be selected for redemption, and (ii) otherwise in the manner
prescribed under the heading "General Provisions Applicable to All
Series of Preferred Stock" in Paragraph (5) of Part D of Article IV
of the 1950 Certificate of Consolidation as amended by Article V of
the 1950 Certificate of Amendment and subsequent amendments.
(K) Shares of Preferred Stock, 10.13% Series ($25 par value)
redeemed (pursuant to the sinking fund or otherwise), purchased or
otherwise acquired by the Corporation shall be cancelled and
restored to the status of authorized but unissued shares of
Preferred Stock of the par value of $25 per share without serial
designation and may be reissued by the Corporation from time to
time as Preferred Stock of any other series of the par value of $25
per share as may be fixed from time to time by the Board of
Directors.
(L) The shares of the Preferred Stock, 10.13% Series ($25 par
value) shall be subject to (i) the consent set forth in the
penultimate subparagraph of Paragraph II of this Certificate to the
same extent and with the same effect as all series of Preferred
Stock outstanding on December 5, 1956 are so subject, and (ii) the
consent set forth in the last subparagraph of Paragraph II of this
Certificate to the same extent and with the same effect as all
series of Preferred Stock outstanding on May 3, 1983 are so
subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
99
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 22nd day of December, 1983.
JOHN M. HAYNES
Senior Vice President
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN M. HAYNES, being duly sworn, deposes and says that he is
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
JOHN M. HAYNES
Senior Vice President
Sworn to before me this
22nd day of December, 1983.
LINDA A. CHAMBERS
Notary Public
LINDA A. CHAMBERS
Notary Public in the State of New York
Qualified in Onondaga Co. No. 8241575
My Commission Expires March 30, 1984
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
100
Albany, N.Y., December 23, 1983
CASES 28650 and 28651--Petitions of Niagara Mohawk Power
Corporation for Authority to Issue Shares of One or More New Series
of Preferred Stock, $100 and/or $25 Par Value, having an Aggregate
Par Value of up to $50,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed December 22, 1983, in accordance with the
orders of the Public Service Commission each dated December 21,
1983.
By the Commission,
JOHN J. KELLIHER
Secretary
[SEAL OF THE COMMISSION]
101
$100 par value
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_______________________
Dated: December 22, 1983
State of New York
Department of State
Filed December 27, 1983
Tax--None
Filing Fee--$60
102
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
___________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred 103
to as the "1950 Certificate of Amendment".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
Pursuant to a Certificate of Amendment under Section 805 of the
Business Corporation Law filed in the Department of State on May 7,
1976, the 2,400,000 authorized but unissued shares of Preferred
Stock with a par value of $100 each were changed into 9,600,000
shares of Preferred Stock with a par value of $25 each, each share
of such 2,400,000 shares of Preferred Stock being changed into four
shares of Preferred Stock with a par value of $25 each rather than
$100, without in any manner changing the 3,400,000 issued and
outstanding shares of Preferred Stock of the par value of $100
each, and the general provisions applicable to all series of
Preferred Stock set forth in Paragraph 5 of Part D of Article IV of
the Certificate of Incorporation, as amended, were amended to fix
the limited voting rights of shares of Preferred Stock with a par
value of $25 per share at one-quarter of the vote per share of each
share of Preferred Stock of the par value of $100 per share.
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the 104
provisions of Subdivision (E) of Paragraph (5) of Part D of Article
IV of the Certificate of Consolidation of the Corporation filed
January 5, 1950."
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of votes represented by the shares of
Preferred Stock of all series then outstanding adopted the
following resolution at a meeting called for that purpose and held
on May 3, 1983 in the manner prescribed by the By-Laws of the
Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the principal amount of unsecured indebtedness
presently permitted by the Company's Certificate of Consolidation
(the "Current Limitation") pursuant to the consent of the holders
of the Company's Preferred Stock on December 5, 1956 and (ii)
beginning January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a nineteenth additional series of Preferred Stock,
to consist of 250,000 shares of the par value of $100 per share of
the authorized 3,400,000 shares of Preferred Stock of the
Corporation of the par value of $100 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph
4(S)(of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments) and to read as follows:
105
Particular Provisions Applicable to Preferred Stock, 10.13% Series
($100 par value)
4(S) The number, designation, relative rights, preferences and
limitations of the nineteenth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the nineteenth additional
series shall be 250,000 shares and the designation of such series
shall be "Preferred Stock, 10.13% Series ($100 par value)".
(B) The dividend rate of the Preferred Stock, 10.13% Series ($100
par value) shall be ten and thirteen hundredths per cent (10.13%)
per annum (computed on the basis of a 360-day year of twelve 30-day
months). The dividends on each share of the Preferred Stock,
10.13% Series ($100 par value) shall be cumulative from the date of
the original issue thereof. So long as any shares of the Preferred
Stock, 10.13% Series ($100 par value) shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to the
Preferred Stock, 10.13% Series ($100 par value), or make any
payment on account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other retirement of
any shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking and whether in cash or
property or in obligations or stock of the Corporation (other than
stock ranking as to dividends and assets junior to the Preferred
Stock, 10.13% Series ($100 par value)), unless at the date of such
declaration in the case of any such dividend, or at the date of any
such other payment, setting apart or distribution, all dividends
payable on the Preferred Stock, 10.13% Series ($100 par value)
shall have been fully paid, or 106
declared and set apart for payment.
(C) Except as provided under the heading "GeneralProvisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 10.13% Series ($100 par
value) shall have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 10.13% Series ($100
par value) payable to the holders thereof upon the voluntary
dissolution, liquidation or winding up of the Corporation shall be
$110.13 per share through December 31, 1984, and thereafter at the
following prices, in each case plus an amount equal to the
dividends accrued and unpaid on such share, whether or not earned
or declared:
For the Twelve Months Voluntary Liquidation
Ended December 31, Price Per Share
1985........................................... $109.004
1986........................................... $107.879
1987........................................... $106.753
1988........................................... $105.628
1989........................................... $104.502
1990........................................... $103.377
1991........................................... $102.251
1992........................................... $101.126
1993........................................... $100.000
(E) The sum per share for the Preferred Stock, 10.13% Series ($100
par value) payable to the holders thereof upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$100 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 10.13% Series ($100 par
value) shall be redeemable at the option of the Board of Directors
of the Corporation, either as a whole or in part, at any time after
107
December 31, 1987 and prior to January 1, 1989 at a redemption
price of $105.628 per share, and thereafter at the following
redemption prices, in each case plus an amount equal to the
dividends accrued and unpaid on such share, whether or not earned
or declared:
For the Twelve Months Optional Redemption
Ended December 31, Price Per Share
1989........................................... $104.502
1990........................................... $103.377
1991........................................... $102.251
1992........................................... $101.126
1993........................................... $100.000
(G) The shares of the Preferred Stock, 10.13% Series ($100 par
value) shall be exchangeable on a share for share basis into other
shares of Preferred Stock, 10.13% Series ($100 par value), but
shall not be convertible into or exchangeable for other securities
of the Corporation.
(H) As a sinking fund with respect to the shares of the Preferred
Stock, 10.13% Series ($100 par value) the Corporation will, subject
to the provisions of subdivision (I) below, call for redemption and
retire (so long as any shares of the Preferred Stock, 10.13% Series
($100 par value) are outstanding), 25,000 shares of the Preferred
Stock, 10.13% Series ($100 par value)(or the number of the shares
of the Preferred Stock, 10.13% Series ($100 par value) then
outstanding if less than 25,000) on December 31, 1987 and on
December 31, 1988, 18,750 shares of the Preferred Stock, ($100 par
value)(or the number of the shares of the Preferred Stock, 10.13%
Series ($100 par value) then outstanding if less than 18,750) on
December 31, 1989, 25,000 shares of the Preferred Stock, 10.13%
Series ($100 par value)(or the number of the shares of the
Preferred Stock, 10.13% Series ($100 par value) then outstanding if
less than 25,000) on December 31, 1990 and on December 31, 1991,
81,250 shares of the Preferred Stock, 10.13% Series ($100 par
value)(or the number of the shares of the Preferred Stock, 10.13%
Series ($100 par value) then outstanding if less than 81,250 on
December 31, 1992 and the balance of the shares of 108
Preferred Stock, 10.13% Series ($100 par value) then outstanding on
December 31, 1993, in each case at a redemption price of $100 per
share, plus an amount equal to the dividends accrued and unpaid on
such shares, whether or not earned or declared. No redemption of
shares of the Preferred Stock, 10.13% Series ($100 par value)
pursuant to subdivision (F) above, nor any purchase or other
acquisition of any shares of the Preferred Stock, 10.13% Series
($100 par value) by the Corporation, shall constitute a retirement
of such shares in lieu of or as a credit against any sinking fund
retirement required by this subdivision (H).
(I) Shares of the Preferred Stock, 10.13% Series ($100 par value)
shall be called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock, under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments. Such redemption shall be mandatory and not
at the option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 10.13%
Series ($100 par value) annually commencing on December 31, 1987
for such sinking fund, pursuant to said subdivision (H), shall be
cumulative and, so long as any shares of the Preferred Stock,
10.13% Series ($100 par value) shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to, or
pari passu with, the Preferred Stock, 10.13% Series ($100 par
value) or make any payment on account of, or set apart money for a
sinking or other analogous fund for, the purchase, redemption or
other retirement of any shares of Common Stock or other such junior
or pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock,
10.13% Series ($100 par value)), unless at the date of declaration
in the case of any such dividend, or at the date of any such other
payment, setting apart or
109
distribution, no sinking fund retirement required by said
subdivision (H) shall be in arrears.
(J) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 10.13% Series ($100 par
value) pursuant to subdivision (F) or (H) above, such redemption
shall be made (i) pro rata according to the numbers of shares held
by each holder of the then outstanding shares of Preferred Stock,
10.13% Series ($100 par value), provided that only whole shares
shall be selected for redemption, and (ii) otherwise in the manner
prescribed under the heading "General Provisions Applicable to All
Series of Preferred Stock" in Paragraph (5) of Part D of Article IV
of the 1950 Certificate of Consolidation as amended by Article V of
the 1950 Certificate of Amendment and subsequent amendments.
(K) Shares of Preferred Stock, 10.13% Series ($100 par value)
redeemed (pursuant to the sinking fund or otherwise), purchased or
otherwise acquired by the Corporation shall be cancelled and
restored to the status of authorized but unissued shares of
Preferred Stock of the par value of $100 per share without serial
designation and may be reissued by the Corporation from time to
time as Preferred Stock of any other series of the par value of
$100 per share as may be fixed from time to time by the Board of
Directors.
(L) The shares of the Preferred Stock, 10.13% Series ($100 par
value) shall be subject to (i) the consent set forth in the
penultimate subparagraph of Paragraph II of this Certificate to the
same extent and with the same effect as all series of Preferred
Stock outstanding on December 5, 1956 are so subject, and (ii) the
consent set forth in the last subparagraph of Paragraph II of this
Certificate to the same extent and with the same effect as all
series of Preferred Stock outstanding on May 3, 1983 are so
subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation 110
Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 22nd day of December, 1983.
JAMES M. HAYNES
Senior Vice President
HAROLD J. BOGAN
Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN M. HAYNES, being duly sworn, deposes and says that he is
Senior Vice President of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
JOHN M. HAYNES
Senior Vice President
Sworn to before me this
22nd day of December, 1983.
LINDA A. CHAMBERS
Notary Public
LINDA A. CHAMBERS
Notary Public in the State of New York
Qualified in Onondaga Co. No. 8241575
My Commission Expires March 30, 1984
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
111
Albany, N.Y., December 23, 1983
CASES 28650 and 28651--Petitions of Niagara Mohawk Power
Corporation for Authority to Issue Shares of One or More New Series
of Preferred Stock, $100 and/or $25 Par Value, having an Aggregate
Par Value of up to $50,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed December 22, 1983, in accordance with the
orders of the Public Service Commission each dated December 21,
1983.
By the Commission,
JOHN J. KELLIHER
Secretary
[SEAL OF THE COMMISSION]
112
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
______________________
Dated: May 29, 1984
State of New York
Department of State
Filed June 4, 1984
Tax--$137,500
Filing Fee--$60
113
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is hereby
further amended to effect changes authorized by Section 801(b) of
the Business Corporation Law, to wit: to increase the aggregate
number of shares of Preferred Stock of the par value of $25 each
which the Corporation shall have the authority to issue by an
additional 10,000,000 shares of such Preferred Stock and to
increase the 114
aggregate number of shares of Common Stock of the par value of $1
each which the Corporation shall have the authority to issue by an
additional 25,000,000 shares of such Common Stock, so that the
authorized shares of capital stock shall consist of 3,400,000
shares of Preferred Stock with a par value of $100 each, 19,600,000
shares of Preferred Stock with a par value of $25 each, 4,000,000
shares of Preference Stock with a par value of $25 each and
150,000,000 shares of Common Stock with a par value of $1 each.
IV
The Certificate of Incorporation of the Corporation, as amended, is
hereby amended so that Parts A and C of Article IV setting forth
the number of authorized shares and the number of shares of each
class, as so amended, read as follows:
"IV. A. The total number of shares which the Corporation may have
is 177,000,000, of which 3,400,000 are to have a par value of $100
each, 23,600,000 are to have a par value of $25 each and
150,000,000 are to have a par value of $1 each."
"C. The shares of the Corporation are to be classified as follows:
3,400,000 shares are to be Preferred Stock with a par value of $100
each; 19,600,000 shares are to be Preferred Stock with a par value
of $25 each; 4,000,000 shares are to be Preference Stock with a par
value of $25 each; and 150,000,000 shares are to be Common Stock
with a par value of $1 each."
V
The stated capital of the Corporation will not be affected by this
Amendment to the Certificate of Incorporation of the Corporation.
VI
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the consent of the holders of at
least two-115
thirds of the outstanding shares of the Corporation's Preference
Stock and by the votes cast in person or by proxy by the holders of
record of a majority of the outstanding shares of the Corporation's
Common Stock entitled to vote at the stockholders' meeting in
person or duly held at the offices of the Corporation at 300 Erie
Boulevard West, in the City of Syracuse, New York, on the first day
of May, 1984, at 10:30 A.M., pursuant to Section 605 of the
Business Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 29th day of May, 1984.
JOHN H. TERRY
Senior Vice President
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN H. TERRY, being duly sworn, deposes and says, that he is a
Senior Vice President, General Counsel and Secretary of Niagara
Mohawk Power Corporation, the corporation named in and described in
the foregoing certificate. That he has read and executed the
foregoing certificate and knows the contents thereof, and that the
statements contained therein are true.
JOHN H. TERRY
Sworn to before me this
29th day of May, 1984
LINDA WOLNIAK
116
LINDA WOLNIAK
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4607311
My Commission Expires March 30, 1985
Adj. Rate Preferred
Stock, Series B
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
______________________
Dated: August 28, 1984
117
State of New York
Department of State
Filed August 29, 1984
Tax--None
Filing Fee--$60
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
____________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
118
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the 119
total number of votes represented by the shares of Preferred Stock
of all series then outstanding adopted the following resolution at
a meeting called for that purpose and held on May 3, 1983 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the principal amount of unsecured indebtedness
presently permitted by the Company's Certificate of Consolidation
(the "Current Limitation") pursuant to the consent of the holders
of the Company's Preferred Stock on December 5, 1956 and (ii)
beginning January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a twentieth additional series of Preferred Stock, to
consist of 2,000,000 shares of the par value of $25 per share of
the authorized 19,600,000 shares of Preferred Stock of the
Corporation of the par value of $25 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph
(4T)(of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments) and to read as follows:
Particular Provisions Applicable to Adjustable Rate Preferred
Stock, Series B
(4T) The number, designations, relative rights, preferences and
limitations of the twentieth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V 120
of the 1950 Certificate of Amendment and subsequent amendments) are
as follows:
(A) The number of shares to constitute the twentieth additional
series shall be 2,000,000 shares and the designation of such series
shall be "Adjustable Rate Preferred Stock, Series B".
(B) the dividend rate of the Adjustable Rate Preferred Stock,
Series B shall be 13.375% per annum for the initial dividend period
ending December 31, 1984 and .625% above the applicable Rate (as
defined below) per annum thereafter, but in no case less than 7.50%
per annum or more than 16.50% per annum (computed in each case on
the basis of a 360-day year of twelve 30-day months). The
dividends on each share of the Adjustable Rate Preferred Stock,
Series B shall be cumulative from the date of the original issue
thereof. So long as any shares of the Adjustable Rate Preferred
Stock, Series B shall be outstanding, the Corporation shall not
declare any dividend on the Common Stock or any other stock ranking
as to dividends or assets junior to the Adjustable Rate Preferred
Stock, Series B or make any payment on account of, or set apart
money for a sinking or other analogous fund for, the purchase,
redemption or other retirement of any shares of Common Stock or
other such junior stock, or make any distribution in respect
thereof, either directly or indirectly, and whether in cash or
property or in obligations or stock of the Corporation (other than
stock ranking as to dividends and assets junior to the Adjustable
Rate Preferred Stock, Series B) unless at the date of such
declaration in the case of any such dividend, or at the date of any
such other payment, setting apart or distribution, all dividends
payable on the Adjustable Rate Preferred Stock, Series B shall have
been fully paid, or declared and set apart for payment.
Except as provided below in this paragraph, the "Applicable Rate"
for any dividend period will be the highest of (i) the Treasury
Bill Rate, (ii) the Ten Year Constant Maturity Rate and (iii) the
Twenty Year Constant Maturity Rate (each as hereinafter defined)
for such dividend period. In the event that the Company determines
in good faith that for any reason one or more of such rates cannot
be determined for any dividend period, then the Applicable Rate for
such 121
dividend period shall be the higher of whichever of such rates can
be determined. In the event that the Company determines in good
faith that none of such rates can be determined for any dividend
period, then the Applicable Rate for such dividend period shall be
the Applicable Rate in effect for the preceding dividend period.
Except as provided below in this paragraph, the "Treasury Bill
Rate" for each dividend period will be the arithmetic average of
the two most recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one such rate
shall be published during the relevant Calendar Period (as defined
below)) for three-month U.S. Treasury bills, as published weekly by
the Federal Reserve Board during the Calendar Period immediately
prior to the ten calendar days immediately preceding the last day
of March, June, September or December, as the case may be, prior to
the dividend period for which the dividend rate on the Adjustable
Rate Preferred Stock is being determined. In the event that the
Federal Reserve Board does not publish such a weekly per annum
market discount rate during any such Calendar Period, then the
Treasury Bill Rate for the related dividend period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate,
if only one such rate shall be published during the relevant
Calendar Period) for three-month U.S. Treasury bills as published
weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Company. In the event that a per annum market discount rate for
three-month U.S. Treasury bills shall not be published by the
Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Treasury Bill Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate,
if only one such rate shall be published during the relevant
Calendar Period) for all of the U.S. Treasury bills then having
maturities of not less than 80 nor more than 100 days, as published
during such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board shall not publish such rates, by any Federal
Reserve Bank or by any U.S. Government department or agency
selected by the 122
Company. In the event that the Company determines in good faith
that for any reason no such U.S. Treasury bill rates are published
as provided above during such Calendar Period, then the Treasury
Bill Rate for such dividend period shall be the arithmetic average
of the per annum market discount rates based upon the closing bids
during such Calendar Period for each of the issues of marketable
non-interest bearing U.S. Treasury securities with a maturity of
not less than 80 or more than 100 days from the date of each such
quotation, as quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally
available) to the Company by at least three recognized U.S.
Government securities dealers selected by the Company. In the
event that the Company determines in good faith that for any reason
the Company cannot determine the Treasury Bill Rate for any
dividend period as provided above in this paragraph, the Treasury
Bill Rate for such dividend period shall be the arithmetic average
of the per annum market discount rates based upon the closing bids
during the related Calendar Period for each of the issues of
marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 or more than 100 days from the date of
each such quotation, as quoted daily for each business day in New
York City (or less frequently if daily quotations shall not be
generally available) to the Company by at least three recognized
U.S. Government securities dealers selected by the Company.
Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each dividend period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only
one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
ten calendar days immediately preceding the last day of March,
June, September or December, as the case may be, prior to the
dividend period for which the dividend rate on the Adjustable Rate
Preferred Stock is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such 123
dividend period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the one weekly
per annum Ten Year Average Yield, if only one such Yield shall be
published during such Calendar Period), as published weekly during
such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Company. In the
event that a per annum Ten Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such
dividend period shall be the arithmetic average of the two most
recent weekly per annum average yields to maturity (or the one
weekly average yield to maturity, if only one such yield shall be
published during such Calendar Period) for all of the actively
traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities (as defined below)) then having
maturities of not less than eight or more than twelve years, as
published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Company. In the event that the Company
determines in good faith that for any reason the Company cannot
determine the Ten Year Constant Maturity Rate for any dividend
period as provided above in this paragraph, then the Ten Year
Constant Maturity Rate for such dividend period shall be the
arithmetic average of the per annum average yields to maturity
based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a
final maturity date not less than eight or more than twelve years
from the date of each such quotation, as quoted daily for each
business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Company by at
least three recognized U.S. Government securities dealers selected
by the Company.
Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each dividend period shall be the
arithmetic average of the two most recent weekly per annum Twenty
Year Average 124
Yields (or the one weekly per annum Twenty Year Average Yield, if
only one such Yield shall be published during the relevant Calendar
Period), as published weekly by the Federal Reserve Board during
the Calendar Period immediately prior to the ten calendar days
immediately preceding the last day of March, June, September or
December, as the case may be, prior to the dividend period for
which the dividend rate on the Adjustable Rate Preferred Stock is
being determined. In the event that the Federal Reserve Board does
not publish such a weekly per annum Twenty Year Average Yield
during such Calendar Period, then the Twenty Year Constant Maturity
Rate for such dividend period shall be the arithmetic average of
the two most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only one
such Yield shall be published during such Calendar Period), as
published weekly during Calendar Period by any Federal Reserve Bank
or by any U.S. Government, department or agency selected by the
Company. In the event that a per annum Twenty Year Average Yield,
shall not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Twenty Year Constant Maturity
Rate for such dividend period shall be the arithmetic average of
the two most recent weekly per annum average yields to maturity (or
the one weekly average yield to maturity, if only one such yield
shall be published during such Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having maturities
of not less than eighteen or more than twenty-two years, as
published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Company. In the event that the Company
determines in good faith that for any reason the Company cannot
determine the Twenty Year Constant Maturity Rate for any dividend
period as provided above in this paragraph, then the Twenty Year
Constant Maturity Rate for such dividend period shall be the
arithmetic average of the per annum average yields to maturity
based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a
final maturity 125
date not less than eighteen or more than twenty-two years from the
date of each such quotation, as quoted daily for each business day
in New York City (or less frequently if daily quotations shall not
be generally available) to the Company by at least three recognized
U.S. Government securities dealers selected by the Company.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five one-hundredths of a percentage point.
As used herein, the term "Calendar Period" means a period of
fourteen calendar days; the term "Special Securities" means
securities which can, at the option of the holder, be surrendered
at face value in payment of any Federal estate tax or which provide
tax benefits to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep or substantial
discount; the term "Ten Year Average Yield" means the average yield
to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of ten
years); and the term "Twenty Year Average Yield" means the average
yield to maturity for actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to constant maturities of
twenty years).
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Adjustable Rate Preferred Stock, Series
B shall have no voting rights whatsoever.
(D) The sum per share for the Adjustable Rate Preferred Stock,
Series B payable to the holders thereof upon the voluntary
dissolution, liquidation or winding up of the Corporation shall be
$25.75 per share through September 30, 1994 and $25.00 per share
thereafter, in each case plus an amount equal to the dividends
accrued and unpaid on such share, whether or not earned or
declared.
126
(E) The sum per share for the Adjustable Rate Preferred Stock,
Series B payable to the holders thereof upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$25 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared.
(F) The shares of the Adjustable Rate Preferred Stock, Series B
shall be redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after
September 30, 1989 and prior to October 1, 1994, at a redemption
price of $25.75 per share and thereafter at a redemption price of
$25.00 per share, in each case plus an amount equal to the
dividends accrued and unpaid on such share, whether or not earned
or declared.
(G) The shares of the Adjustable Rate Preferred Stock, Series B
shall be exchangeable on a share for share basis into other shares
of Adjustable Rate Preferred Stock, Series B, but shall not be
convertible into or exchangeable for other securities of the
Corporation.
(H) As a sinking fund with respect to the shares of the Adjustable
Rate Preferred Stock, Series B, the Corporation will, subject to
the provisions of subdivision (I) below, call for redemption and
retire (so long as any shares of the Adjustable Rate Preferred
Stock, Series B are outstanding) 50,000 shares of the Adjustable
Rate Preferred Stock, Series B (or the number of the shares of the
Adjustable Rate Preferred Stock, Series B then outstanding if less
than 50,000) on September 30, 1993 and on each September 30
thereafter to and including September 30, 2023 and the balance of
the shares of the Adjustable Rate Preferred Stock, Series B then
outstanding on August 15, 2024, in each case at a redemption price
of $25 per share, plus an amount equal to the dividends accrued and
unpaid on such shares, whether or not earned or declared.
(I) Shares of the Adjustable Rate Preferred Stock, Series B shall
be called for redemption for the sinking fund as required by
subdivision (H) above in the manner prescribed for redemption of
shares of Preferred Stock under the heading "General Provisions
Applicable to 127
All Series of Preferred Stock" in paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments. Such redemption shall be mandatory and not at the
option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Adjustable Rate Preferred
Stock, Series B annually commencing on September 30, 1993 for such
sinking fund, pursuant to said subdivision (H), shall be cumulative
and, so long as any shares of the Adjustable Rate Preferred Stock,
Series B shall be outstanding, the Corporation shall not declare
any dividend on the Common Stock or any other stock ranking as to
dividends or assets junior to, or pari passu with, the Adjustable
Rate Preferred Stock, Series B or make any payment on account of,
or set apart money for a sinking or other analogous fund for, the
purchase, redemption or other retirement of any shares of Common
Stock or other such junior or pari passu stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Adjustable Rate Preferred Stock, Series B), unless at
the date of declaration in the case of any such dividend, or at the
date of any such other payment, setting apart or distribution, no
sinking fund retirement required by said subdivision (H) shall be
in arrears. If the Corporation shall be prevented for any reason
from redeeming the number of shares of Adjustable Rate Preferred
Stock, Series B which it is required to retire on any such
September 30, the deficit shall be made good on the first
succeeding September 30 on which the Corporation shall not be
prevented from redeeming such shares of Adjustable Rate Preferred
Stock, Series B. Shares of Adjustable Rate Preferred Stock, Series
B purchased, redeemed pursuant to subdivision (F) above or
otherwise acquired by the Corporation (except pursuant to
subdivision (H) above) and not theretofore so applied may be
applied to satisfy the sinking fund on one or more of the foregoing
September 30 dates.
(J) In every case of redemption of less than all of the
outstanding shares of Adjustable Rate Preferred Stock, Series B
pursuant to subdivision (F) or (H) above, such redemption shall be
made (i) with 128
respect to each holder of 5% or more of the then outstanding shares
of Adjustable Rate Preferred Stock, Series B, pro rata according to
the numbers of shares held by such holders, provided that only
whole shares shall be selected for redemption, and (ii) otherwise
in the manner prescribed under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments.
(K) Shares of Adjustable Rate Preferred Stock, Series B redeemed,
purchased or otherwise acquired by the Corporation shall be
cancelled and restored to the status of authorized but unissued
shares of Preferred Stock of the par value of $25 per share without
serial designation and may be reissued by the Corporation from time
to time as Preferred Stock of any other series of the par value of
$25 per share as may be fixed from time to time by the Board of
Directors.
(L) The shares of the Adjustable Rate Preferred Stock, Series B
shall be subject to (i) the consent set forth in the penultimate
subparagraph of Paragraph II of this Certificate to the same extent
and with the same effect as all series of Preferred Stock
outstanding on December 5, 1956 are so subject, and (ii) the
consent set forth in the last subparagraph of Paragraph II of this
Certificate to the same extent and with the same effect as all
series of Preferred Stock outstanding on May 3, 1983 are so
subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 28th day of August, 1984.
JOHN W. POWERS
Vice President-Treasurer
129
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN W. POWERS, being duly sworn, deposes and says that he is Vice
President-Treasurer of Niagara Mohawk Power Corporation, the
corporation named in and described in the foregoing Certificate,
that he has read and executed the foregoing Certificate and knows
the contents thereof and that the statements contained therein are
true.
JOHN W. POWERS
Vice President-Treasurer
Sworn to before me this
28th day of August, 1984.
LINDA A. CHAMBERS
Notary Public
LINDA A. CHAMBERS
Notary Public in the State of New York
Qualified in Onondaga Co. No. 8241575
My Commission Expires March 30, 1986
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., August 29, 1984
130
CASES 28784 and 28785--Petitions of Niagara Mohawk Power
Corporation for authority under Section 69 of the Public Service
Law to issue shares of one or more series of preferred stock, $100
and/or $25 par value, with aggregate par value not to exceed
$50,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed August 28, 1984, in accordance with the
orders of the Public Service Commission each dated May 30, 1984.
By the Commission,
WILLIAM BARNES
Deputy Secretary
[SEAL OF THE COMMISSION]
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
131
Under Section 805 of the Business Corporation Law
___________________________
Dated: April 15, 1985
State of New York
Department of State
Filed April 17, 1985
Tax--None
Filing Fee--$60
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
132
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
133
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of votes represented by the shares of
Preferred Stock of all series then outstanding adopted the
following resolution at a meeting called for that purpose and held
on May 3, 1983 in the manner prescribed by the By-Laws of the
Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the principal amount of unsecured indebtedness
presently permitted by the Company's Certificate of Consolidation
(the "Current Limitation") pursuant to the consent of the holders
of the Company's Preferred Stock on December 5, 1956 and (ii)
beginning January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences and
limitations of a twenty-first additional series of Preferred Stock,
to consist of 2,000,000 shares of the par value of $25 per share of
the authorized 19,600,000 shares of Preferred Stock of the
Corporation of the par value of $25 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph
(4U)(of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 134
1950 Certificate of Amendment and subsequent amendments) and to
read as follows:
Particular Provisions Applicable to Adjustable Rate Preferred
Stock, Series C
(4U) The number, designations, relative rights, preferences and
limitations of the twenty-first additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the twenty-first additional
series shall be 2,000,000 shares and the designation of such series
shall be "Adjustable Rate Preferred Stock, Series C".
(B) The dividend rate of the Adjustable Rate Preferred Stock,
Series C shall be 12.12% per annum for the initial dividend period
ending June 30, 1985 and .40% above the Applicable Rate (as defined
below) per annum thereafter, but in no case less than 7% per annum
or more than 15.50% per annum (computed in each case on the basis
of a 360-day year of twelve 30-day months). The dividends on each
share of the Adjustable Rate Preferred Stock, Series C shall be
cumulative from the date of the original issue thereof. So long as
any shares of the Adjustable Rate Preferred Stock, Series C shall
be outstanding, the Corporation shall not declare any dividend on
the Common Stock or any other stock ranking as to dividends or
assets junior to the Adjustable Rate Preferred Stock, Series C or
make any payment on account of, or set apart money for a sinking or
other analogous fund for the purchase, redemption or other
retirement of any shares of Common Stock or other such junior
stock, or make any distribution in respect thereof, either directly
or indirectly, and whether in cash or property or in obligations or
stock of the Corporation (other than stock ranking as to dividends
and assets junior to the Adjustable Rate Preferred Stock, Series C)
unless at 135
the date of such declaration in the case of any such dividend, or
at the date of any such other payment, setting apart or
distribution, all dividends payable on the Adjustable Rate
Preferred Stock, Series C shall have been fully paid, or declared
and set apart for payment.
Except as provided below in this paragraph, the "Applicable Rate"
for any dividend period will be the highest of (i) the Treasury
Bill Rate, (ii) the Ten Year Constant Maturity Rate and (iii) the
Twenty Year Constant Maturity Rate (each as hereinafter defined)
for such dividend period. In the event that the Company determines
in good faith that for any reason one or more of such rates cannot
be determined for any dividend period, then the Applicable Rate for
such dividend period shall be the higher of whichever of such rates
can be determined. In the event that the Company determines in
good faith that none of such rates can be determined for any
dividend period, then the Applicable Rate for such dividend period
shall be the Applicable Rate in effect for the preceding dividend
period.
Except as provided below in this paragraph, the "Treasury Bill
Rate" for each dividend period will be the arithmetic average of
the two most recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one such rate
shall be published during the relevant Calendar Period (as defined
below)) for three-month U.S. Treasury bills, as published weekly by
the Federal Reserve Board during the Calendar Period immediately
prior to the ten calendar days immediately preceding the last day
of March, June, September or December, as the case may be, prior to
the dividend period for which the dividend rate on the Adjustable
Rate Preferred Stock is being determined. In the event that the
Federal Reserve Board does not publish such a weekly per annum
market discount rate during any such Calendar Period, then the
Treasury Bill Rate for the related dividend period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate,
if only one such rate shall be published during the relevant
Calendar Period) for three-month U.S. Treasury bills as published
weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. government department or agency selected by the
Company. In the event that a per annum market 136
discount rate for three-month U.S. Treasury bills shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Treasury Bill Rate for such dividend
period shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published
during the relevant Calendar Period) for all of the U.S. Treasury
bills then having maturities of not less than 80 nor more than 100
days, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish
such rates, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. In the event that
the Company determines in good faith that for any reason no such
U.S. Treasury bill rates are published as provided above during
such Calendar Period, then the Treasury Bill Rate for such dividend
period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar
Period for each of the issues of marketable non-interest bearing
U.S. Treasury securities with a maturity of not less than 80 or
more than 100 days from the date of each such quotation, as quoted
daily for each business day in New York City (or less frequently if
daily quotations shall not be generally available) to the Company
by at least three recognized U.S. Government securities dealers
selected by the Company. In the event that the Company determines
in good faith that for any reason the Company cannot determine the
Treasury Bill Rate for any dividend period as provided above in
this paragraph, the Treasury Bill Rate for such dividend period
shall be the arithmetic average of the per annum market discount
rates based upon the closing bids during the related Calendar
Period for each of the issues of marketable interest-bearing U.S.
Treasury securities with a maturity of not less than 80 or more
than 100 days from the date of each such quotation, as quoted daily
for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Company by at
least three recognized U.S. Government securities dealers selected
by the Company.
137
Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each dividend period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only
one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
ten calendar days immediately preceding the last day of March,
June, September or December, as the case may be, prior to the
dividend period for which the dividend rate on the Adjustable Rate
Preferred Stock is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield,
if only one such Yield shall be published during such Calendar
Period), as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or agency
selected by the Company. In the event that a per annum Ten Year
Average Yield shall not be published by the Federal Reserve Board
or by any Federal Reserve Bank or by any U.S. Government department
or agency during such Calendar Period, then the Ten Year Constant
Maturity Rate for such dividend period shall be the arithmetic
average of the two most recent weekly per annum average yields to
maturity (or the one weekly average yield to maturity, if only one
such yield shall be published during such Calendar Period) for all
of the actively traded marketable U.S. Treasury fixed interest rate
securities (other than special Securities (as defined below)) then
having maturities of not less than eight or more than twelve years,
as published during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board shall not publish such
yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. In the event that
the Company determines in good faith that for any reason the
Company cannot determine the Ten Year Constant Maturity Rate for
any dividend period as provided above in this paragraph, then the
Ten Year Constant Maturity Rate for such dividend period shall be
the arithmetic average of the per annum average 138
yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than eight or more
than twelve years from the date of each such quotation, as quoted
daily for each business day in New York City (or less frequently if
daily quotations shall not be generally available) to the Company
by at least three recognized U.S. Government securities dealers
selected by the Company.
Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each dividend period shall be the
arithmetic average of the two most recent weekly per annum Twenty
Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the
ten calendar days immediately preceding the last day of March,
June, September or December, as the case may be, prior to the
dividend period for which the dividend rate on the Adjustable Rate
Preferred Stock is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Twenty Year
Average Yield during such Calendar Period, then the Twenty Year
Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum Twenty
Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during
such Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. In the event that a
per annum Twenty Year Average Yield shall not be published by the
Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Twenty Year Constant Maturity Rate for such dividend period
shall be the arithmetic average of the two most recent weekly per
annum average yields to maturity (or the one weekly average yield
to maturity, if only one such yield shall be published during such
Calendar Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special
139
Securities) then having maturities of not less than eighteen or
more than twenty-two years, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve
Board shall not publish such yields, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Company. In the event that the Company determines in good faith
that for any reason the Company cannot determine the Twenty Year
Constant Maturity Rate for any dividend period as provided above in
this paragraph, then the Twenty Year Constant Maturity Rate for
such dividend period shall be the arithmetic average of the per
annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date of not less than
eighteen or more than twenty-two years from the date of each such
quotation, as quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally
available) to the Company by at least three recognized U.S.
Government securities dealers selected by the Company.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five one-hundredths of a percentage point.
As used herein, the term "Calendar Period" means a period of
fourteen calendar days; the term "Special Securities" means
securities which can, at the option of the holder, be surrendered
at face value in payment of any Federal estate tax or which provide
tax benefits to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep or substantial
discount; the term "Ten Year Average Yield" means the average yield
to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of ten
years); and the term "Twenty Year Average Yield" means the average
yield to maturity for actively traded marketable U.S. Treasury
fixed interest rate securities (adjusted to constant maturities of
twenty years).
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part 140
D of Article IV of the 1950 Certificate of Consolidation as amended
by Article V of the 1950 Certificate of Amendment and subsequent
amendments, the Adjustable Rate Preferred Stock, Series C shall
have no voting rights whatsoever.
(D) The sum per share for the Adjustable Rate Preferred Stock,
Series C payable to the holders thereof upon the voluntary
dissolution, liquidation or winding up of the Corporation shall be
$25.75 per share through June 30, 1995 and $25.00 per share
thereafter, in each case plus an amount equal to the dividends
accrued and unpaid on such share, whether or not earned or
declared.
(E) The sum per share for the Adjustable Rate Preferred Stock,
Series C payable to the holders thereof upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$25 per share plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared.
(F) The shares of the Adjustable Rate Preferred Stock, Series C
shall be redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after June
30, 1990 and prior to July 1, 1995, at a redemption price of $25.75
per share and thereafter at a redemption price of $25.00 per share,
in each case plus an amount equal to the dividends accrued and
unpaid on such share, whether or not earned or declared.
(G) The shares of the Adjustable Rate Preferred Stock, Series C
shall be exchangeable on a share for share basis into other shares
of Adjustable Rate Preferred Stock, Series C, but shall not be
convertible into or exchangeable for other securities of the
Corporation.
(H) In every case of redemption of less than all of the
outstanding shares of Adjustable Rate Preferred Stock, Series C
pursuant to subdivision (F) above, such redemption shall be made
(i) with respect to each holder of 5% or more of the then
outstanding shares of Adjustable Rate Preferred Stock, Series C,
pro rata according to the
141
numbers of shares held by such holders, provided that only whole
shares shall be selected for redemption, and (ii) otherwise in the
manner prescribed under the heading "General Provisions Applicable
to All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments.
(I) Shares of Adjustable Rate Preferred Stock, Series C redeemed,
purchased or otherwise acquired by the Corporation shall be
cancelled and restored to the status of authorized but unissued
shares of Preferred Stock of the par value of $25 per share without
serial designation and may be reissued by the Corporation from time
to time as Preferred Stock of any other series of the par value of
$25 per share as may be fixed from time to time by the Board of
Directors.
(J) The shares of the Adjustable Rate Preferred Stock, Series C
shall be subject to (i) the consent set forth in the penultimate
subparagraph of Paragraph II of this Certificate to the same extent
and with the same effect as all series of Preferred Stock
outstanding on December 5, 1956 are so subject, and (ii) the
consent set forth in the last subparagraph of Paragraph II of this
Certificate to the same extent and with the same effect as all
series of Preferred Stock outstanding on May 3, 1983 are so
subject.
V
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 15th day of April, 1985.
JOHN H. TERRY
Senior Vice President, General
Counsel and Secretary
142
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
JOHN H. TERRY
Senior Vice President, General
Counsel and Secretary
Sworn to before me this
15th day of April, 1985.
MARILYN A. GARROW
Notary Public
MARILYN A. GARROW
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4684763
My Commission Expires March 31, 1986
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., April 16, 1985
143
CASES 28835 and 28836--Petitions of Niagara Mohawk Power
Corporation for authority under Section 69 of the Public Service
Law to issue shares of one or more series of preferred stock, $100
and/or $25 par value, with aggregate par value not to exceed
$50,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed April 15, 1985, in accordance with the
orders of the Public Service Commission dated January 30, 1985 and
April 3, 1985.
By the Commission,
JOHN J. KELLIHER
Secretary
[SEAL OF THE COMMISSION]
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
144
Under Section 805 of the Business Corporation Law
__________________
Dated: April 30, 1985
State of New York
Department of State
Filed May 3, 1985
Tax-None
Filing Fee--$60
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
____________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
145
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on Janaury
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
146
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of votes represented by the shares of
Preferred Stock of all series then outstanding adopted the
following resolution at a meeting called for that purpose and held
on May 3, 1983 in the manner prescribed by the By-Laws of the
Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the principal amount of unsecured indebtedness
presently permitted by the Company's Certificate of Consolidation
(the "Current Limitation") pursuant to the consent of the holders
of the Company's Preferred Stock on December 5, 1956 and (ii)
beginning January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a twenty-second additional series of Preferred
Stock, to consist of 1,000,000 shares of the par value of $25 per
share of the authorized 19,600,000 shares of Preferred Stock of the
Corporation of the par value of $25 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph (4V)
(of Part D of Article IV of the 1950 Certificate of Consolidation
as amended 147
by Article V of the 1950 Certificate of Amendment and subsequent
amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 12.75% Series
(4V) The number, designations, relative rights, preferences and
limitations of the twenty-second additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the twenty-second
additional series shall be 1,000,000 shares and the designation of
such series shall be "Preferred Stock, 12.75% Series".
(B) The dividend rate of the Preferred Stock, 12.75% Series shall
be twelve and three quarters per cent (12.75%) per annum (computed
on the basis of a 360-day year of twelve 30-day months). The
dividends on each share of the Preferred Stock, 12.75% Series shall
be cumulative from the date of the original issue thereof. So long
as any shares of the Preferred Stock, 12.75% Series shall be
outstanding, the Corporation shall not declare any dividend on the
Common Stock or any other stock ranking as to dividends or assets
junior to the Preferred Stock, 12.75% Series, or make any payment
on account of, or set apart money for a sinking or other analogous
fund for, the purchase, redemption or other retirement of any
shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Preferred Stock, 12.75% Series), or issue any
additional shares of Preferred Stock (other than stock ranking as
to dividends and assets junior to the Preferred Stock, 12.75%
Series), or issue any additional shares of Preferred Stock (other
than in exchange for or registration of transfer of shares of
Preferred Stock then outstanding) or
148
voluntarily redeem or repurchase shares of Preferred Stock, unless
at the date of such declaration in the case of any such dividend,
or at the date of any such other payment, setting apart or
distribution, or at the date of such issuance, voluntary redemption
or repurchase, all dividends payable on the Preferred Stock, 12.75%
Series shall have been fully paid, or declared and set apart for
payment. The Corporation shall pay all dividends which shall have
been declared on the Preferred Stock, 12.75% Series not later than
the earlier of (i) 92 days following the date of such declaration
or (ii) 10 days following the date on which funds for the payment
thereof shall have been set apart.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 12.75% Series shall
have no voting rights whatsoever.
(D) So long as any shares of the Preferred Stock, 12.75% Series
shall be outstanding, the Corporation shall not issue any shares of
Preferred Stock or any other stock ranking pari passu with
Preferred Stock that by its terms shall entitle the holders thereof
to (i) more than one-quarter (1/4) vote per $25 of par value, in
the case of Preferred Stock, or the equivalent in the case of such
other stock, (ii) a sum per share payable upon the involuntary
dissolution, liquidation or winding up of the Corporation in excess
of the par value thereof, plus an amount equal to the dividends
accrued and unpaid on such share whether or not earned or declared,
or (iii) a sum per share payable upon mandatory redemption thereof
in excess of the par value thereof, plus an amount equal to the
dividends accrued and unpaid on such share whether or not earned or
declared. So long as any shares of the Preferred Stock, 12.75%
Series shall be outstanding, the Corporation shall not, without the
prior written consent of the holders of record of at least two-
thirds of the shares of the Preferred Stock, 12.75% Series then
outstanding, issue any shares of Preferred Stock or any other
capital stock ranking pari
149
passu with Preferred Stock that by its terms shall entitle the
holders thereof to (a) vote as a series on any merger or
consolidation of the Corporation,(b) vote for or elect one or more
members of the Board of Directors of the Corporation at any time
when the holders of the Preferred Stock, 12.75% Series have no such
right or (c) vote as a series on amendments to the Certificate of
Incorporation, in each case unless otherwise required by the
Certificate of Incorporation, as amended to the date hereof, or
applicable law.
(E) So long as any shares of the Preferred Stock, 12.75% Series
shall be outstanding, the Corporation shall not (i) authorize or
create any series or issue any shares of Preferred Stock or any
other stock or (ii) enter into, issue or become bound by any
contract, indenture, bond, note or other agreement or evidence of
indebtedness, in either case that limits the payment of dividends
or other distribution on, or the mandatory redemption of, any
shares of Preferred Stock, 12.75% Series, other than by any such
limitations that are no more restrictive than the most restrictive
limitations contained in the Certificate of Incorpoation, as
heretofore and hereby amended, and the Mortgage Trust Indenture
dated as of October 1, 1937 between the Corporation and The Marine
Midland Trust Company of New York, as heretofore modified by
indentures supplemental thereto.
(F) The sum per share for the Preferred Stock, 12.75% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $28.20 per
share prior to June 30, 1986, and thereafter at the following
prices, in each case plus an amount equal to the dividends accrued
and unpaid on such share, whether or not earned or declared:
For the Twelve Months Voluntary Liquidation
Prior to June 30, Price Per Share
1987.................................... $28.04
1988.................................... $27.88
1989.................................... $27.72
150
1990.................................... $27.56
1991.................................... $27.40
1992.................................... $27.24
1993.................................... $27.08
1994.................................... $26.92
1995.................................... $26.76
1996.................................... $26.60
1997.................................... $26.44
1998.................................... $26.28
1999.................................... $26.12
2000.................................... $25.96
2001.................................... $25.80
2002.................................... $25.64
2003.................................... $25.48
2004.................................... $25.32
2005.................................... $25.16
2006 and thereafter..................... $25.00
(G) The sum per share for the Preferred Stock, 12.75% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(H) The shares of the Preferred Stock, 12.75% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time after
issuance and prior to June 30, 1986 at a redemption price of $28.20
per share, and thereafter at teh following redemption prices, in
each case plus an amount equal to the dividends accrued and unpaid
on such share, wherether or not earned or declared:
For the Twelve Months Optional Redemption
Prior to June 30, Price Per Share
1987.................................... $28.04
1988.................................... $27.88
1989.................................... $27.72
151
1990.................................... $27.56
1991.................................... $27.40
1992.................................... $27.24
1993.................................... $27.08
1994.................................... $26.92
1995.................................... $26.76
1996.................................... $26.60
1997.................................... $26.44
1998.................................... $26.28
1999.................................... $26.12
2000.................................... $25.96
2001.................................... $25.80
2002.................................... $25.64
2003.................................... $25.48
2004.................................... $25.32
2005.................................... $25.16
2006 and thereafter..................... $25.00
provided, however, that the Board of Directors of the Corporation
shall not prior to June 30, 1990 exercise its option to redeem any
shares of the Preferred Stock, 12.75% Series as a part of or in
anticipation of any refunding operation by the application,
directly or indirectly, or borrowed funds or the proceeds of the
issue of any shares of Preferred Stock or any stock ranking prior
to or on a parity with the Preferred Stock, 12.75% Series as to
dividends or assets if such borrowed funds have an interest rate or
cost to the Corporation (calculated in accordance with accepted
financial practice), or such shares have a dividend rate or cost to
the Corporation so calculated, less than 12.75% per annum.
(I) The shares of the Preferred Stock, 12.75% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 12.75% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(J) As a sinking fund with respect to the shares of the Preferred
Stock, 12.75% Series the Corporation will, subject to the
provisions of subdivision (M) below, call for redemption and retire
on June 30, 152
1991 and on each June 30 thereafter to and including June 30, 2010
(so long as any shares of the Preferred Stock, 12.75% Series are
outstanding) 50,000 shares of the Preferred Stock, 12.75% Series
(or the number of the shares of the Preferred Stock, 12.75% Series
then outstanding if less than 50,000), in each case at a redemption
price of $25 per share, plus an amount equal to the dividends
accrued and unpaid on such shares, whether or not earned or
declared. No redemption of shares of the Preferred Stock, 12.75%
Series pursuant to subdivision (H) above or subdivision (K) or (L)
below, or any purchase or other acquisition of any shares of the
Preferred Stock, 12.75% Series by the Corporation, shall constitute
a retirement of such shares in lieu of or as a credit against any
sinking fund retirement required by this subdivision (J).
(K) The Corporation may, at the option of the Board of Directors
of the Corporation, on June 30, 1991, and on each June 30
thereafter to and including June 30, 2010, redeem up to 50,000
shares of the Preferred Stock, 12.75% Series, or any lesser number
of shares which shall constitute all of the shares of the Preferred
Stock, 12.75% Series then outstanding, in addition to shares then
to be redeemed for the sinking fund pursuant to subdivision (J)
above, in each case at a redemption price of $25 per share, plus an
amount equal to the dividends accrued and unpaid on such shares,
whether or not earned or declared, which privilege and option so to
redeem shall be noncumulative.
(L) In the event that the Corporation shall not exercise in full
its option, pursuant to subdivision (K) above, to redeem up to
50,000 additional shares of the Preferred Stock, 12.75% Series on
June 30, 1991 or on any June 30 thereafter to and including June
30, 2010 (each such date being hereinafter referred to as a
"sinking fund date"), then each holder of shares of the Preferred
Stock, 12.75% Series then outstanding may require the Corporation
to redeem, and, subject to any applicable restrictions of law, the
Corporation shall redeem, on such sinking fund date, in addition to
shares then to be redeemed pursuant to subdivision (K) above, a
number of shares of the Preferred Stock, 12.75% Series not greater
than the additional number of whole shares of the Preferred Stock,
12.75% Series held by such 153
holder that would have been redeemed if the Company had exercised
in full its option to redeem such additional 50,000 shares of the
Preferred Stock, 12.75% Series, at a redemption price of $25 per
share, plus an amount equal to the dividends accrued and unpaid on
such share, whether or not earned or declared, which right to
require redemption shall be noncumulative. To exercise its right
to require redemption by the Corporation of such additional shares
of Preferred Stock, 12.75% Series pursuant to this subdivision (L),
a holder shall deliver notice in writing to the Corporation not
less than 20 days prior to the applicable sinking fund date
specifying the number of such shares to be so redeemed by the
Corporation.
(M) Shares of the Preferred Stock, 12.75% Series shall be called
for redemption for the sinking fund as required by subdivision (J)
above in the manner prescribed for redemption of shares of
Preferred Stock under the heading "General Provisions Applicable to
All Series of Preferred Stock" in paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments. Such redemption shall be mandatory and not at the
option of the Board of Directors but shall be subject to any
applicable restrictions of law. Nevertheless, the obligations of
the Corporation to redeem shares of the Preferred Stock, 12.75%
Series annually commencing on June 30, 1991 for such sinking fund,
pursuant to said subdivision (J), shall be cumulative. So long as
any shares of the Preferred Stock, 12.75% Series shall be
outstanding, the Corporation shall not declare any dividend on the
Common Stock or any other stock ranking as to dividends or assets
junior to, or pari passu with, the Preferred Stock, 12.75% Series
or make any payment on account of, or set apart money for a sinking
or other analogous fund for, the purchase, redemption or other
retirement of any shares of Common Stock or other such junior or
pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock,
12.75% Series), or issue any additional shares of Preferred Stock
(other than in exchange for or registration of transfer of shares
of Preferred Stock then outstanding), or voluntarily redeem or
154
repurchase shares of Preferred Stock, unless at the date of
declaration in the case of any such dividend, or at the date of any
such other payment, setting apart or distribution, or at the date
of such issuance, voluntary redemption or repurchase, no redemption
required by subdivision (J) or (L) shall be in arrears.
(N) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 12.75% Series pursuant to
subdivision (H), (J) or (K) above, such redemption shall be made
(i) pro rata according to the numbers of shares held by each holder
of the then outstanding shares of Preferred Stock, 12.75% Series,
provided that only whole shares shall be selected for redemption,
and (ii) otherwise in the manner prescribed under the heading
"General Provisions applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(O) Shares of Preferred Stock, 12.75% Series redeemed (pursuant to
the sinking fund or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preferred Stock of the par value
of $25 per share without serial designation and may be reissued by
the Corporation from time to time as Preferred Stock of any other
series of the par value of $25 per share as may be fixed from time
to time by the Board of Directors.
(P) The shares of the Preferred Stock, 12.75% Series shall be
subject to (i) the consent set forth in the penultimate
subparagraph of Paragraph II of this Certificate to the same extent
and with the same effect as all series of Preferred Stock
outstanding on December 5, 1956 are so subject, and (ii) the
consent set forth in the last subparagraph of Paragraph II of this
Certificate to the same extent and with the same effect as all
series of Preferred Stock outstanding on May 3, 1983 are so
subject.
IV
155
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 30th day of April, 1985.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
Sworn to before me this
30th day of April, 1985.
MARILYN A. GARROW
Notary Public
MARILYN A. GARROW
156
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4684763
My Commission Expires March 30, 1986.
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., May 2, 1985
CASE 28834--Petition of Niagara Mohawk Power Corporation for
authority under Section 69 of the Public Service Law to issue
shares of one or more series of preferred stock, $100 and/or $25
par value, with an aggregate par value not to exceed $25,000,000.
* * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed April 30, 1985, in accordance with the
order of the Public Service Commission dated January 30, 1985.
By the Commission,
JOHN J. KELLIHER
Secretary
[SEAL OF THE COMMISSION]
157
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
___________________
Dated: December 19, 1986
State of New York
Department of State
Filed December 24, 1986
Tax--None
Filing Fee--$60
158
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred 159
to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of votes represented by the shares of
Preferred Stock of all series then outstanding adopted the
following resolution at a meeting called for that purpose and held
on May 3, 1983 in the manner prescribed by the By-Laws of the
Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the 160
principal amount of unsecured indebtedness presently permitted by
the Company's Certificate of Consolidation (the "Current
Limitation") pursuant to the consent of the holders of the
Company's Preferred Stock on December 5, 1956 and (ii) beginning
January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a twenty-third additional series of Preferred Stock,
to consist of 3,000,000 shares of the par value of $25 per share of
the authorized 19,600,000 shares of Preferred Stock of the
Corporation of the par value of $25 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as paragraph (4W)
(of Part D of Article IV of the 1950 Certificate of Consolidation
as amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 8.75% Series
(4W) The number, designations, relative rights, preferences and
limitations of the twenty-third additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the twenty-third additional
series shall be 3,000,000 shares and the designation of such series
shall be "Preferred Stock, 8.75% Series".
(B) The dividend rate of the Preferred Stock, 8.75% Series shall
be eight and three quarters percent (8.75%) per annum (computed on
the 161
basis of a 360-day year of twelve 30-day months). The dividends on
each share of the Preferred Stock, 8.75% Series shall be cumulative
from the date of the original issue thereof. So long as any shares
of the Preferred Stock, 8.75% Series shall be outstanding, the
Corporation shall not declare any dividend on the Common Stock or
any other stock ranking as to dividends or assets junior to the
Preferred Stock, 8.75% Series, or make any payment on account of,
or set apart money for a sinking or other analogous fund for, the
purchase, redemption or other retirement of any shares of Common
Stock or other such junior stock, or make any distribution in
respect thereof, either directly or indirectly, and whether in cash
or property or in obligations or stock of the Corporation (other
than stock ranking as to dividends and assets junior to the
Preferred Stock, 8.75% Series), unless at the date of such
declaration in the case of any such dividend, or at the date of any
such other payment, setting apart or distribution, all dividends
payable on the Preferred Stock, 8.75% Series shall have been fully
paid, or declared and set apart for payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 8.75% Series shall have
no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 8.75% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $27.19 per
share prior to December 31, 1991, $25.75 per share on and after
December 31, 1991 and prior to January 1, 1993 and thereafter the
following prices, in each case plus an amount equal to the
dividends accrued and unpaid on such share, whether or not earned
or declared:
162
For the Twelve Months Ended Voluntary Liquidation
December 31 Price Per Share
1993............................. $25.50
1994............................. 25.25
1995............................. 25.00
1996............................. 25.00
(
E) The sum per share for the Preferred Stock, 8.75% Series payable
to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25 per share
plus an amount equal to the dividends accrued and unpaid on such
share, whether or not earned or declared.
(F) The shares of the Preferred Stock, 8.75% Series shall be
redeemable at the option of the Corporation, either as a whole or
in part, at any time on or after December 31, 1991 and prior to
January 1, 1993 at a redemption price of $25.75 per share, and
thereafter at the following redemption prices, in each case plus an
amount equal to the dividends accrued and unpaid on such share,
whether or not earned or declared:
For the Twelve Months Ended Optional Redemption
December 31 Price Per Share
1993............................. $25.50
1994............................. 25.25
1995............................. 25.00
1996............................. 25.00
(G) The shares of the Preferred Stock, 8.75% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 8.75% Series, but shall not be convertible into or
exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the Preferred
Stock, 8.75% Series the Corporation will, subject to the provisions
of the subdivision (J) below, call for redemption and retire on
163
December 31, 1992 and on each December 31, thereafter to and
including December 31, 1996 (so long as any shares of the Preferred
Stock, 8.75% Series are outstanding) 600,000 shares of the
Preferred Stock, 8.75% Series (or the number of the shares of the
Preferred Stock, 8.75% Series then outstanding if less than
600,000), in each case at a redemption price of $25 per share, plus
an amount equal to the dividends accrued and unpaid on such shares,
whether or not earned or declared. No redemption of shares of the
Preferred Stock, 8.75% Series pursuant to subdivision (F) above or
subdivision (I) below shall constitute a retirement of such shares
in lieu of or as a credit against any sinking fund retirement
required by this subdivision (H).
(I) The Corporation may, at its option, on December 31, 1992 and
on each December 31 thereafter to and including December 31, 1996,
redeem up to 600,000 shares of the Preferred Stock, 8.75% Series,
or any lesser number of shares which shall constitute all of the
shares of the Preferred Stock, 8.75% Series then outstanding, in
addition to shares then to be redeemed for the sinking fund
pursuant to subdivision (H) above, in each case at a redemption
price of $25 per share, plus an amount equal to the dividends
accrued and unpaid on such shares, whether or not earned or
declared, which privilege and option so to redeem shall be non-
cumulative.
(J) Shares of the Preferred Stock, 8.75% Series shall be called
for redemption for the sinking fund as required by subdivision (H)
above in the manner prescribed for redemption of shares of
Preferred Stock under the heading "General Provisions Applicable to
All Series of Preferred Stock" in paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments. Such redemption shall be mandatory and not at the
option of the Corporation but shall be subject to any applicable
restrictions of law. Nevertheless, the obligations of the
Corporation to redeem shares of the Preferred Stock, 8.75% Series
annually commencing on December 31, 1992 for such sinking fund,
pursuant to said subdivision (H), shall be cumulative. So long as
any shares of the Preferred Stock, 8.75% Series shall be
outstanding, the Corporation shall not declare any dividend on the
164
Common Stock or any other stock ranking as to dividends or assets
junior to, or pari passu with, the Preferred Stock, 8.75% Series or
make any payment on account of, or set apart money for a sinking or
other analogous fund for, the purchase, redemption or other
retirement of any shares of Common Stock or other such junior or
pari passu stock, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash or property or
in obligations or stock of the Corporation (other than stock
ranking as to dividends and assets junior to the Preferred Stock,
8.75% Series), unless at the date of declaration in the case of any
such dividend, or at the date of any such other payment, setting
apart or distribution, no sinking fund requirement required by
subdivision (H) shall be in arrears. If the Corporation shall be
prevented for any reason from redeeming the number of shares of
Preferred Stock, 8.75% Series, which it is required to retire on
any such December 31, the deficit shall be made good on the first
succeeding December 31 on which the Corporation shall not be
prevented from redeeming such shares of Preferred Stock, 8.75%
Series. Shares of the Preferred Stock, 8.75% Series, purchased by
the Corporation may be applied to satisfy the sinking fund on one
or more of the foregoing December 31, dates.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 8.75% Series pursuant to
subdivision (F), (H) or (I) above, the shares to be redeemed shall
be chosen by lot, in any manner deemed appropriate by the transfer
agent of the Preferred Stock, 8.75% Series, and redemption shall
otherwise be in the manner prescribed under the heading "General
Provisions Applicable to All Series of Preferred Stock" in
Paragraph (5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by Article V of the 1950 Certificate of
Amendment and subsequent amendments.
(L) Shares of Preferred Stock, 8.75% Series redeemed (pursuant to
the sinking fund or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preferred Stock of the par value
of $25 per share without serial designation and may be reissued by
the 165
Corporation from time to time as Preferred Stock of any other
series of the par value of $25 per share as may be fixed from time
to time by the Board of Directors.
(M) The shares of the Preferred Stock, 8.75% Series shall be
subject to (i) the consent set forth in the penultimate
subparagraph of Paragraph II of this Certificate to the same extent
and with the same effect as all series of Preferred Stock
outstanding on December 5, 1956 are so subject, and (ii) the
consent set forth in the last subparagraph of Paragraph II of this
Certificate to the same extent and with the same effect as all
series of Preferred Stock outstanding on May 3, 1983 are so
subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 19th day of December, 1986.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
HAROLD J. BOGAN
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power 166
Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
JOHN H. TERRY
Senior Vice President,
General Counsel and Secretary
Sworn to before me this
19th day of December, 1986.
MARILYN A. GARROW
Notary Public
MARILYN A. GARROW
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4684763
My Commission Expires March 30, 1988
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., December 23, 1986
CASES 28984 and 28837--Petitions of Niagara Mohawk Power
Corporation for authority under Section 69 of the Public Service
Law to issue shares of one or more series of preferred stock, $100
and/or $25 par value, with aggregate par value not to exceed
$75,000,000.
* * * *
The Public Service Commission hereby consents to and approves this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
167
CORPORATION LAW, executed December 19, 1986, in accordance with the
orders of the Public Service Commission dated December 17, 1986.
By the Commission,
JOHN J. KELLIHER
Secretary
[SEAL OF THE COMMISSION]
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_________________________
168
State of New York
Department of State
Filed June 1, 1987
Tax--None
Filing Fee--$60
Dated: May 22, 1987
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
___________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
169
II
The Certificate of Consolidation forming the Corporation was filed
by the Department of State on July 31, 1937.
III
The Certificate of Incorporation as heretofore amended is hereby
further amended to effect changes authorized by Section 801(b) of
the Business Corporation Law, to wit: (1) to permit the dividend
payment dates on future series of Preferred Stock to be a date or
dates fixed by the Board of Directors with respect to each
particular series rather than limited to the last day of March,
June, September and December and (2) to expand the purpose clause
and powers of the Corporation.
IV
The Certificate of Incorporation of the Corporation, as
amended, is hereby amended so that Subparagraph (A) of Paragraph
(5) of Part D of Article IV of the Corporation's Certificate of
Incorporation, as amended, will be further amended to read as
follows:
"(A) The holders of the Preferred Stock of each series shall be
entitled to receive, but only when, as and if declared by the Board
of Directors, dividends at the rate fixed for such series and no
more. Such dividends shall be payable on a date or dates which
shall be fixed by the Board of Directors and shall be cumulative
from such date as may be fixed for the series. All dividends
payable on Preferred Stock shall be fully paid, or declared and set
apart for payment, before any dividends on the Common Stock shall
be paid or set apart for payment so that if, for all dividend
periods terminating on the same or an earlier date, dividends on
all outstanding shares of the Preferred Stock at the rates fixed
for the respective series shall not have been paid or set apart for
payment, the deficiency shall be fully paid or set apart for
payment before any dividends shall be paid or set apart for payment
on the Common Stock. Dividends in full shall not be paid or set
apart for payment 170
on the Preferred Stock of any one series for any dividend period
unless dividends in full have been or are contemporaneously paid or
set apart for payment on the Preferred Stock of all other series
for all dividend periods in respect of such series terminating on
the same or an earlier date. When the stated dividends are not
paid in full on all series of the Preferred Stock in respect of any
dividend period, the shares of all series having the same dividend
period shall share ratably in the payment of dividends, including
accumulations, if any, based on the dividends which would be
payable on said shares if all dividends in respect of such series
were paid in full. A 'dividend period' is the period between any
two consecutive dividend payment dates, excluding the first of such
dates, as fixed for the series to which a share or shares shall
belong. Accruals of dividends shall not bear interest. With
respect to all series of Preferred Stock outstanding in May 5,
1987, dividends shall continue to be paid on the last day of March,
June, September and December in each year."
V
The Certificate of Consolidation of this Corporation, as amended,
is hereby further amended by inserting the following Article IA to
read as follows:
"IA. The purposes of the Corporation are to engage in rendering
electric or gas service, or both, to the public within the State of
New York, subject to the jurisdiction of the Public Service
Commission as and to the extent provided by law.
In addition to any and all activities comprehended within the
foregoing paragraph, the Corporation shall have the power:
(i) to engage in any business or operation incidental to any
business above referred to; to conduct contracting and engineering
operations; to search for, create, prospect, construct,
manufacture, purchase, hold, lease, develop, operate, treat, use,
transport, sell, mortgage, pledge, import, export and otherwise
acquire and dispose of and deal in and with properties and rights,
of whatever character and 171
wherever situated, real and personal, tangible and intangible, as
may be necessary for or incidental to the purposes aforesaid or in
connection with any similar or related business, including lands,
mines, minerals, buildings, plants, equipment, warehouses,
materials, products, merchandise, securities, choses in action,
inventions, secrets, patents, trademarks and goodwill; to make
contracts; to borrow money, contract debts and issue notes, bonds
and other obligations, either secured or unsecured; to acquire, by
purchase, subscription or otherwise, and to hold and dispose of,
all or any part of the stock, bonds and (or) other obligations of
any corporation or association, domestic or foreign, and to pay,
issue or assign, in consideration or part consideration therefor,
cash or the stock, bonds or other obligations of this Corporation
or any other lawful consideration; to purchase or otherwise acquire
and to hold and dispose of the stock, bonds and other obligations
of this Corporation or any other corporation or business or not-
for-profit entity, provided that this Corporation's capital be not
impaired by any such acquisition of its own stock; to guarantee the
stock, bonds or other obligations of, to lend money to and
otherwise to assist any corporation, association or other business
or not-for-profit entity, whose stock (or its equivalent), bonds or
other obligations or any part thereof may be acquired, held or
disposed of by this Corporation, or in which this Corporation may
be otherwise interested in any way, and to do all things for the
protection or improvement of such stock, bonds or other
obligations; to purchase or otherwise acquire, from any person or
persons, corporation or corporations, and to hold, manage, conduct
and dispose of, all or any part of their respective properties and
businesses of any character aforesaid, including all or any part of
the estate, property, rights, privileges and franchises of any of
or all such corporations or associations, and to assume all or any
part of the obligations thereof or incident thereto, and to pay,
issue or assign, in consideration or part consideration therefor,
cash or the stock, bonds or other obligations of this Corporation
or any other lawful consideration and generally to do any and all
things, not contrary to law, necessary or convenient for or in
connection with the purposes aforesaid; and
172
(ii) to carry on any other lawful business and to do any and
everything necessary, suitable, convenient or proper for the
accomplishment of any of the purposes or the attainment of any or
all of the objects hereinbefore enumerated or incidental to the
powers herein named or for the enhancement of the value of the
property of this Corporation or which shall at any time appear
conducive thereto or expedient.
The purposes above stated are intended as both objects and powers;
and no part of such statements is intended to be limited or
restricted in any way by inference from any other part, or
otherwise except as expressly stated; nor are such statements
intended to limit or restrict in any way general powers which the
Corporation may have under the present or future laws of the State
of New York; but, anything herein to the contrary notwithstanding,
the Corporation shall not have power to do anything at any time not
then permitted by law to be done by a corporation organized under
the Business Corporation Law, the Transportation Corporations Law
or any similar or successor statute."
VI
The stated capital of the Corporation will not be affected by this
Amendment to the Certificate of Incorporation of the Corporation.
VII
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the Board of Directors of the
Corporation, followed by the votes cast in person or by proxy of
the holders of record of the majority of the outstanding shares of
the Corporation entitled to vote at the stockholders' meeting at
which such votes were cast with relation to the proceedings
provided for in this Amendment and neither the Certificate of
Incorporation nor any other certificate filed pursuant to law
requires a larger proportion of votes. Such votes were cast in
person or by proxy at a stockholders' meeting duly held at the
offices of the Corporation at No. 300 Erie Boulevard West, in the
City of Syracuse, New York, on the 5th day of May, 1987, at 10:30
A.M., pursuant to Section 605 of the Business Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 22nd day of May, 1987.
s/ JOHN H. TERRY
John H. Terry
Senior Vice President, General
Counsel and Secretary
s/ HAROLD J. BOGAN
Harold J. Bogan
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing certificate. That he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
s/ JOHN H. TERRY
John H. Terry
Senior Vice President, General
Counsel and Secretary
Sworn to before me this
22nd day of May, 1987.
s/ MARILYN A. GARROW
Notary Public
MARILYN A. GARROW
Notary Public in the State of New York
174
Qualified in Onondaga Co. No. 4684763
My Commission Expires March 30, 1988
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
______________________
Dated: July 16, 1987
175
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
____________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred 176
to as the "1950 Certificate of Consolidation".
Pursuant to Sections 26-a and 36 of the Stock Corporation Law, a
Certificate of Amendment was filed in the Department of State on
January 5, 1950 to effect certain changes authorized in subdivision
2 of Section 35 of the Stock Corporation Law. Said Certificate of
Amendment is hereinafter sometimes referred to as the "1950
Certificate of Amendment".
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation the holders of record of at least a
majority of the total number of votes represented by the shares of
Preferred Stock of all series then outstanding adopted the
following resolution at a meeting called for that purpose and held
on May 3, 1983 in the manner prescribed by the By-Laws of the
Corporation:
"Resolved, that consent be and is hereby given to the incurrence
(i) through December 31, 1988, of unsecured indebtedness in an
aggregate principal amount not exceeding the greater of
$700,000,000 or the principal amount of unsecured indebtedness
presently permitted by the Company's Certificate of Consolidation
(the "Current Limitation") pursuant to the consent of the holders
of the Company's Preferred Stock on December 5, 1956 and (ii)
beginning January 1, 1989, the Current Limitation."
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a twenty-fourth additional series of Preferred
Stock, to consist of 1,000,000 shares of the par value of $25.00
per share of the authorized 19,600,000 shares of Preferred Stock of
the Corporation of the par value of $25.00 per share, as fixed by
the Board of Directors of the Corporation before the issuance of
such series, such provisions so added to be designated as Paragraph
(4X) 177
(of Part D of Article IV of the 1950 Certificate of Consolidation
as amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 8.70% Series
(4X) The number, designations, relative rights, preference sand
limitations of the twenty-fourth additional series of the Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the twenty-fourth
additional series shall be 1,000,000 shares and the designation of
such series shall be "Preferred Stock, 8.70% Series".
(B) The dividend rate of the Preferred Stock, 8.70% Series shall
be eight and seventy one-hundredths percent (8.70%) per annum of
the par value thereof (computed on the basis of a 360-day year of
twelve 30-day months). The dividends on each share of the
Preferred Stock, 8.70% Series shall be payable in cash on the last
day of March, June, September and December in each year and,
whether or not earned or declared, shall be cumulative from the
date of the original issue thereof. So long as any shares of the
Preferred Stock, 8.70% Series shall be outstanding, the Corporation
shall not declare any dividend on the Common Stock or any other
stock ranking as to dividends or assets junior to the Preferred
Stock, 8.70% Series, or make any payment on account of, or set
apart money for a sinking or other analogous fund for, the
purchase, redemption or other retirement of any shares of Common
Stock or other such junior stock, or make any distribution in
respect thereof, either directly or indirectly, and whether in cash
or property or in obligations or stock of the Corporation (other
than stock ranking as to dividends and assets junior to the
Preferred Stock, 8.70% Series), unless at the date of such
declaration in the case of any such dividend, or at the date of
178
any such other payment, setting apart or distribution, all
dividends payable on the Preferred Stock, 8.70% Series shall have
been fully paid, or declared and set apart for payment.
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, and except that the provisions of this
Paragraph (4X) shall not be amended without the vote or written
consent of the holders of record of at least two-thirds of the
total number of shares of the Preferred Stock, 8.70% Series then
outstanding, the Preferred Stock, 8.70% Series shall have no voting
rights whatsoever.
(D) The cash sum per outstanding share for the Preferred Stock,
8.70% Series payable to the holders thereof upon the voluntary
dissolution, liquidation or winding up of the Corporation shall be
$27.19 per share if paid on or prior to June 30, 1992, and if paid
thereafter shall be the cash sum per share set forth below, plus in
each case an amount in cash equal to the dividends accrued and
unpaid on such share to the date of payment, whether or not earned
or declared:
If Paid During
the Twelve
Months Voluntary Liquidation
Ended June 30 Price Per Share
1993........................................ $25.75
1994........................................ 25.50
1995........................................ 25.25
1996 or any year thereafter................. 25.00
(E) The sum per outstanding share for the Preferred Stock, 8.70%
Series payable to the holders thereof upon the involuntary
dissolution, liquidation or winding up of the Corporation shall be
$25.00 per share plus an amount equal to the dividends accrued and
unpaid on such share to the date of payment, whether or not earned
or 179
declared.
(F) The outstanding shares of the Preferred Stock, 8.70% Series
shall be redeemable at the option of the Corporation, either as a
whole or in part, at any time on or after July 1, 1992. The cash
sum per outstanding share of Preferred Stock, 8.70% Series payable
to the holders thereof upon redemption shall be the sum per share
set forth below, plus in each case an amount in cash equal to the
dividends accrued and unpaid on such share to the date of payment,
whether or not earned or declared:
If Paid During
the Twelve
Months Optional Redemption
Ended June 30 Price Per Share
1993........................................ $25.75
1994........................................ 25.50
1995........................................ 25.25
1996 or any year thereafter................. 25.00
(G) The shares of the Preferred Stock, 8.70% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 8.70% Series, but shall not be convertible into or
exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the outstanding shares of
the Preferred Stock, 8.70% Series the Corporation will, subject to
the provisions of Subdivision (J) below, call for redemption and
retire on June 30, 1993 and on each June 30 thereafter to and
including June 30, 1996 (so long as any shares of the Preferred
Stock, 8.70% Series are outstanding) 200,000 shares of the
Preferred Stock, 8.70% Series (or the number of the shares of the
Preferred Stock, 8.70% Series then outstanding if less than
200,000) and on June 30, 1997 the balance of the shares of
Preferred Stock, 8.70% Series then outstanding, in each case at a
cash redemption price of $25.00 per share, plus an amount in cash
equal to the dividends accrued and unpaid on such shares to the
date of payment, whether or not earned 180
or declared. No redemption of shares of the Preferred Stock, 8.70%
Series pursuant to Subdivision (F) above or Subdivision (I) below,
nor any purchase or other acquisition of any shares of the
Preferred Stock, 8.70% Series by the Corporation, shall constitute
a retirement of such shares in lieu of or as a credit against any
sinking fund retirement required by this Subdivision (H).
(I) The Corporation may, at its option, on June 30, 1993 and on
each June 30 thereafter to and including June 30, 1996, redeem up
to 200,000 shares of the Preferred Stock, 8.70% Series in addition
to shares then to be redeemed for the sinking fund pursuant to
Subdivision (H) above, in each case at a cash redemption price of
$25.00 per share, plus an amount in cash equal to the dividends
accrued and unpaid on such shares to the date of payment, whether
or not earned or declared, which privilege and option so to redeem
shall be noncumulative.
(J) Shares of the Preferred Stock, 8.70% Series shall be called
for redemption for the sinking fund as required by Subdivision (H)
above in the manner prescribed for redemption of shares of
Preferred Stock under the heading "General Provisions Applicable to
All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 Certificate of Amendment and subsequent
amendments. Such redemption shall be mandatory and not at the
option of the Corporation but shall be subject to any applicable
restrictions of law. Nevertheless, the obligations of the
Corporation to redeem shares of the Preferred Stock, 8.70% Series
annually commencing on June 30, 1993 for such sinking fund,
pursuant to said Subdivision (H), shall be cumulative, whether or
not funds of the Corporation are legally available to redeem such
shares. So long as any shares of the Preferred Stock, 8.70% Series
shall be outstanding, the Corporation shall not declare any
dividend on the Common Stock or any other stock ranking as to
dividends or assets junior to, or pari passu with, the Preferred
Stock, 8.70% Series or make any payment on account of, or set apart
money for a sinking or other analogous fund for, the purchase,
redemption or other retirement of any shares of Common Stock or
other
181
such junior or pari passu stock, or make any distribution in
respect thereof, either directly or indirectly, and whether in cash
or property or in obligations or stock of the Corporation (other
than stock ranking as to dividends and assets junior to the
Preferred Stock, 8.70% Series), unless at the date of declaration
in the case of any such dividend, or at the date of any such other
payment, setting apart or distribution, no sinking fund requirement
required by Subdivision (H) shall be in arrears. If the
Corporation shall be prevented for any reason from redeeming the
number of shares of Preferred Stock, 8.70% Series, which it is
required to retire on any such June 30, the deficit shall be made
good on the first succeeding June 30 on which the Corporation shall
not be prevented from redeeming such shares of Preferred Stock,
8.70% Series.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 8.70% Series pursuant to
Subdivisions (F), (H) or (I) above, such redemption shall be made
(i) pro rata according to the numbers of shares held by each holder
of the then outstanding shares of Preferred Stock, 8.70% Series,
provided that only whole shares shall be selected for redemption,
and not by lot, and (ii) otherwise in the manner prescribed under
the heading "General Provisions Applicable to All Series of
Preferred Stock" in Paragraph (5) of Part D of Article IV of the
1950 Certificate of Consolidation as amended by Article V of the
1950 Certificate of Amendment and subsequent amendments.
(L) Shares of Preferred Stock, 8.70% Series redeemed (pursuant to
the sinking fund or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preferred Stock of the par value
of $25.00 per share without serial designation and may be reissued
by the Corporation from time to time as Preferred Stock of any
other series of the par value of $25.00 per share as may be fixed
from time to time by the Board of Directors, but shall not be
reissued by the Corporation as shares of Preferred Stock, 8.70%
Series.
(M) The shares of the Preferred Stock, 8.70% Series shall be
subject to (i) the consent set forth in the penultimate
Subparagraph of 182
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject, and (ii) the consent set forth in
the last Subparagraph of Paragraph II of this Certificate to the
same extent and with the same effect as all series of Preferred
Stock outstanding on May 3, 1983 are so subject.
IV
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 22nd day of July, 1987.
s/ JOHN M. HAYNES
John M. Haynes
Senior Vice President
s/ JOHN H. TERRY
John H. Terry
Senior Vice President,
General Counsel and Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN H. TERRY, being duly sworn, deposes and says that he is Senior
Vice President, General Counsel and Secretary of Niagara Mohawk
Power Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
s/ JOHN H. TERRY
183
John H. Terry
Senior Vice President,
General Counsel and Secretary
Sworn to before me this
16th day of July, 1987.
s/ JO ANN HESKIN
Notary Public
JO ANN HESKIN
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4622678
My Commission Expires July 31, 1989
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
___________________
184
State of New York
Department of State
Filed May 27, 1988
Tax--None
Filing Fee--$60
Dated: May 25, 1988
LeBOEUF, LAMB, LEIBY & MacRAE
520 Madison Avenue
New York, New York 10022
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_____________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Vice President and an
Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II
185
The Certificate of Consolidation forming the Corporation was filed
by the Department of State on July 31, 1937.
III
The Certificate of Incorporation, as heretofore amended, is hereby
further amended to effect changes authorized by Section 801(b) of
the Business Corporation Law, to wit: (1) to limit the personal
liability of Directors in certain circumstances, (2) to institute
"fair price" provisions relating to certain business combinations
and restrict future amendments of such provisions, (3) to institute
provisions concerning the classification, number, term and removal
of Directors and restrict future amendments of such provisions and
(4) to eliminate cumulative voting by common shareholders for the
election of the Board of Directors and restrict future amendments
of such provision.
IV
To effect the amendment pursuant to clause (1) of paragraph III
above, the Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended by inserting the
following Article XIIA to read as follows:
"XIIA. To the fullest extent now or hereafter not expressly
prohibited by the Business Corporation Law of the State of New York
as currently in effect or as the same may hereafter be amended, no
director of the Corporation shall be personally liable to the
Corporation or its shareholders for damages for any breach of duty
of such capacity. No amendment, modification, repeal of this
Article XIIA, nor the adoption of any provision of this Certificate
of Incorporation inconsistent with this Article XIIA, shall
adversely affect any right or protection of any director that
exists at the time of such amendment, modification, repeal or the
adoption of any inconsistent provision."
V
186
To effect the amendments pursuant to clause (2) of paragraph III
above, the Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended by inserting the
following Article IVA to read as follows:
"IVA. The vote of the shareholders of the Corporation required to
approve any Business Combination shall be as set forth in this
Article IVA. The term "Business Combination" shall have the
meaning ascribed to it in paragraph A.(2) of this Article IVA.
Each other capitalized term shall have the meaning ascribed to it
in paragraph C of this Article IVA.
A.(1) In addition to any affirmative vote required by law or this
Certificate of Incorporation and except as otherwise expressly
provided in paragraph B of this Article IVA:
(A) any merger, consolidation or binding share exchange of the
Corporation or any Subsidiary with (i) any Interested Shareholder
or (ii) any other person (whether or not itself an Interested
Shareholder) which is, or after such merger, consolidation or
binding share exchange would be, an Affiliate of an Interested
Shareholder; or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with any Interested Shareholder or any Affiliate of any Interested
Shareholder of assets of the Corporation or any Subsidiary having
an aggregate Fair Market Value of $5,000,000 or more; or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Shareholder
or any Affiliate of any Interested Shareholder in exchange for
cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $5,000,000 or more, other
than the issuance of securities upon the conversion of convertible
securities of the Corporation or any Subsidiary which were not
acquired by such Interested Shareholder (or such Affiliate) from
the Corporation or a 187
Subsidiary; or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any Interested
Shareholder; or
(E) any transaction involving the Corporation or any Subsidiary
(whether or not with or into or otherwise involving an Interested
Shareholder), and including, without limitation, any
reclassification of securities (including any reverse stock split),
or recapitalization or reorganization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any self tender offer for or repurchase of
securities of the Corporation by the Corporation or any Subsidiary
or any other transaction (whether or not with or into or otherwise
involving an Interested Shareholder), which in any such case has
the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity securities
or securities convertible into equity securities of the Corporation
or any Subsidiary which is directly or indirectly beneficially
owned by any Interested Shareholder or any Affiliate of any
Interested Shareholder;
shall require the affirmative vote of the holders of at least 75
percent of the combined voting power of the then outstanding shares
of the Voting Stock, in each case voting together as a single class
(it being understood that for purposes of this Article IVA each
share of the Voting Stock shall have the number of votes granted to
it pursuant to Article IV of this Certificate of Incorporation or
any designation of the rights, powers and preferences of any class
or series of Preferred or Preference Stock made pursuant to said
Article IV (a "Preferred or Preference Stock Designation")), which
vote shall include the affirmative vote of at least two-thirds
(2/3) of the combined voting power of the outstanding shares of
Voting Stock held by shareholders other than the Interested
Shareholder. Such affirmative vote shall be required
notwithstanding any provision of law or any other provision of this
Certificate of Incorporation or 188
any agreement with any national securities exchange or otherwise
which might permit a lesser vote or no vote and in addition to any
affirmative vote required of the holders of any class or series of
Voting Stock pursuant to law, this Certificate of Incorporation or
any Preferred or Preference Stock Designation.
(2) The term "Business Combination" as used in this Article IVA
shall mean any transaction that is referred to in any one or more
clauses (A) through (E) of paragraph A.(1) of this Article IVA.
B. The provisions of paragraph A.(1) of this Article IVA shall not
be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as
may be required by law, any other provision of this Certificate of
Incorporation, any Preferred or Preference Stock Designation and
any agreement with any national securities exchange, if, in the
case of a Business Combination that does not involve any cash or
other consideration being received by the shareholders of the
Corporation, solely in their respective capacities as shareholders
of the Corporation, the condition specified in the following
paragraph (1) is met, or, in the case of any other Business
Combination, the conditions specified in the following paragraph
(1) or the conditions specified in the following paragraph (2) are
met:
(1) such Business Combination shall have been approved by a
majority of the Disinterested Directors; or
(2) each of the five conditions specified in the following clauses
(A) through (E) shall have been met:
(A) the aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of any consideration other than cash to be
received per share by holders of Common Stock in such Business
Combination shall be at least equal to the highest of the following
(it being intended that the requirements of this clause (2)(A)
shall be required to be met with respect to all shares of Common
Stock outstanding whether or not the Interested Shareholder has
acquired any shares of the Common Stock):
189
(i) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of Common Stock beneficially
owned by the Interested Shareholder which were acquired
beneficially by such Interested Shareholder (x) within the two-year
period immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Shareholder, whichever
is higher; or
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is
higher; or
(iii) the amount which bears the same percentage relationship to
the Fair Market Value of the Common Stock on the Announcement Date
as the highest per share price determined in (2)(A)(i) above bears
to the Fair Market Value of the Common Stock on the date of the
commencement of the acquisition of the Common Stock by such
Interested Shareholder; and
(B) the aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of any consideration other than cash to be
received per share by holders of the shares of any class or series
of Voting Stock (other than Common Stock) shall be at least equal
to the highest of the following (it being intended that the
requirements of this clause (2)(B) shall be required to be met with
respect to every class and series of such outstanding Voting Stock,
whether or not the Interested Shareholder has previously acquired
any shares of a particular class or series of Voting Stock):
(i) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of such class or series of
Voting Stock beneficially owned by the Interested Shareholder which
were acquired beneficially by such Interested Shareholder (x)
within the two-year period immediately prior to the Announcement
Date or (y) in the transaction in which it became an Interested
Shareholder, whichever is higher; or
190
(ii) if applicable, the highest preferential amount per share to
which the holders of shares of such class or series of Voting Stock
are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; or
(iii) the Fair Market Value per share of such class or series of
Voting Stock on the Announcement Date or the Determination Date,
whichever is higher; or
(iv) the amount which bears the same percentage to the Fair Market
Value of such class or series of Voting Stock on the Announcement
Date as the highest per share price in (2)(B)(i) above bears to the
Fair Market Value of such Voting Stock on the date of the
commencement of the acquisition of such Voting Stock by such
Interested Shareholder; and
(C) the consideration to be received by holders of a particular
class or series of outstanding Voting Stock (including Common
Stock) shall be in cash or in the same form as was previously paid
in order to acquire beneficially shares of such class or series of
Voting Stock that are beneficially owned by the Interested
Shareholder and, if the Interested Shareholder beneficially owns
shares of any class or series of Voting Stock that were acquired
with varying forms of consideration, the form of consideration to
be received by each holder of such class or series of Voting Stock
shall be, at the option of such holder, either cash or the form
used by the Interested Shareholder to acquire beneficially the
largest number of shares of such class or series of Voting Stock
beneficially acquired by it prior to the Announcement Date; and
(D) after such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination:
(i) such Interested Shareholder shall not have become the
beneficial owner of any additional shares of Voting Stock of the
Corporation, except as part of the transaction in which it became
an Interested Shareholder or upon conversion of convertible
securities acquired by 191
it prior to becoming an Interested Shareholder or a result of a pro
rata stock dividend or stock split; and
(ii) such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or tax credits or other tax advantages
provided by the Corporation or any Subsidiary, whether in
anticipation of or in connection with such Business Combination or
otherwise; and
(iii) such Interested Shareholder shall not have caused any
material change in the Corporation's business or capital structure,
including, without limitation, the issuance of shares of capital
stock of the Corporation to any third party; and
(iv) there shall have been (x) no failure to declare and pay at the
regular date therefor the full amount of dividends (whether or not
cumulative) on any outstanding Preferred or Preference Stock except
as approved by a majority of the Disinterested Directors, (y) no
reduction in the annual rate of dividends paid on Common Stock
(except as necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the Disinterested
Directors and (z) an increase in such annual rate of dividends (as
necessary to prevent any such reduction) in the event of any
reclassification (including any reverse stock split),
recapitalization, reorganization, self tender offer or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so to
increase such annual rate was approved by a majority of the
Disinterested Directors; and
(E) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules
and regulations), whether or not the Corporation is then subject to
such requirements, shall be mailed by and at the expense of the
Interested Shareholder at least thirty days prior to the
Consummation Date of such Business Combination to the public
shareholders of the Corporation (whether or 192
not such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions), and shall contain
at the front thereof in a prominent place (i) any recommendations
as to the advisability (or inadvisability) of the Business
Combination which the Disinterested Directors, if any, may choose
to state, and (ii) the opinion of a reputable national investment
banking firm as to the fairness (or not) of such Business
Combination from the point of view of the remaining public
shareholders of the Corporation (such investment banking firm to be
engaged solely on behalf of the remaining public shareholders, to
be paid a reasonable fee for their services by the Corporation upon
receipt of such opinion, to be unaffiliated with such Interested
Shareholder, and, if there are at the time any Disinterested
Directors, to be selected by a majority of the Disinterested
Directors).
C. For the purposes of this Article IVA:
(1) A "person" shall include, without limitation, any individual,
firm, corporation, group (as such term is used in Regulation 13D-G
of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on January 1, 1988) or other entity.
(2) "Interested Shareholder" shall mean any person (other than the
Corporation or any Subsidiary or any employee benefit plan of the
Corporation or any Subsidiary) who or which:
(A) is the beneficial owner, directly or indirectly, of more than
10 percent of the combined voting power of the then outstanding
shares of Voting Stock; or
(B) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10 percent or more of
the combined voting power of the then outstanding shares of Voting
Stock; or
(C) is an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of Voting Stock that were at any time
within 193
the two-year period immediately prior to the date in question
beneficially owned by an Interested Shareholder, if such assignment
or succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(3) A person shall be a "beneficial owner" of any Voting Stock:
(A) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(B) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether or not such right is exercisable
immediately) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (b) the right to vote
or direct the vote pursuant to any agreement, arrangement or
understanding; or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(4) For the purposes of determining whether a person is an
Interested Shareholder pursuant to paragraph C.(2) of this Article
IVA, the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned by such Interested Shareholder
through application of paragraph C.(3) of this Article IVA but
shall not include any other shares of Voting Stock that may be
issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options, or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect
on January 1, 1988.
194
(6) "Subsidiary" shall mean any company more than 50 percent of
whose outstanding equity securities having ordinary voting power in
the election of directors is owned, directly or indirectly, by the
Corporation or by a Subsidiary or by the Corporation and one or
more Subsidiaries; provided, however, that for the purposes of the
definition of Interested Shareholder set forth in paragraph C.(2)
of this Article IVA, the term "Subsidiary" shall mean only a
company of which a majority of each class or series of capital
stock entitled to vote generally in the election of directors of
such company is owned, directly or indirectly, by the Corporation.
(7) "Disinterested Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a
nominee of, the Interested Shareholder and was a member of the
Board prior to the time that the Interested Shareholder became an
Interested Shareholder, and any successor of a Disinterested
Director who is unaffiliated with, and not a nominee of, the
Interested Shareholder and who is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors
then on the Board of Directors.
(8) "Fair Market Value" shall mean (1) in the case of stock, the
highest closing sale price during the 30-day period commencing on
the 40th day preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the New York Stock
Exchange-Composite Tape, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing sale price or bid quotation with
respect to a share of such stock during the 30-day period
commencing on the 40th day preceding the date in question on the
National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in
question of a share of such stock as determined by a majority of
the Disinterested Directors in good faith; and (2) in the case of
property other than cash or stock, the fair market value of such
property on the date in question as determined by a 195
majority of the Disinterested Directors in good faith.
(9) In the event of any Business Combination in which the
Corporation survives, the phrase "any consideration other than cash
to be received" as used in paragraph B.(2)(A) and (B) of this
Article IVA shall include the shares of Common Stock and/or the
shares of any other class or series of outstanding Voting Stock
retained by the holders of such shares.
(10) "Announcement Date" shall mean the date of first public
announcement of the proposed Business Combination.
(11) "Determination Date" shall mean the date on which the
Interested Shareholder became an Interested Shareholder.
(12) "Consummation Date" shall mean the date of the consummation
of the Business Combination.
(13) The term "Voting Stock" shall mean all outstanding shares of
capital stock of all classes and series of the Corporation entitled
to vote generally in the election of directors of the Corporation,
in each case voting together as a single class.
D. A majority of the Disinterested Directors shall have the power
and duty to determine, on the basis of information known to them
after reasonable inquiry, all facts necessary to determine
compliance with this Article IVA including, without limitation:
(1) whether a person is an Interested Shareholder;
(2) the number of shares of Voting Stock beneficially owned by any
person;
(3) whether a person is an Affiliate or Associate of another
person;
(4) whether the requirements of paragraph B.(2) of this Article IVA
have been met with respect to any Business Combination;
196
(5) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $5,000,000 or more; and
(6) such other matters with respect to which a determination is
required under this Article IVA. The good faith determination of a
majority of the Disinterested Directors on such matters shall be
conclusive and binding for all purposes of this Article IVA.
E. Nothing contained in this Article IVA shall be construed to
relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
F. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders
of at least 80 percent of the combined voting power of the Voting
Stock, voting together as a single class, shall be required to
alter, amend or repeal this Article IVA or to adopt any provisions
inconsistent therewith; provided, however, that if there is an
interested Shareholder on the record date for the meeting at which
such action is submitted to the shareholders for their
consideration, such 80 percent vote must include the affirmative
vote of at least two-thirds (2/3) of the combined voting power of
the outstanding shares of Voting Stock held by shareholders other
than the Interested Shareholder.
G. Nothing contained in this Article IVA is intended, or shall be
construed, to affect any of the relative rights, preferences or
limitations, within the meaning of such terms under Section
801(b)(12) of the New York Business Corporation Law or any
successor statute, of any shares of any authorized class or series
thereof of the Corporation, whether issued or unissued."
197
VI
To effect the amendments pursuant to clause (3) of paragraph III
above, the Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby amended so that Article VII of the
Corporation's Certificate of Incorporation, as amended, will be
further amended to read as follows:
"VII. A. (1) Except as otherwise fixed pursuant to Article IV of
this Certificate of Incorporation relating to the rights of the
holders of any class or series of Preferred or Preference Stock
having a preference over the Common Stock as to dividends or to
elect directors under specified circumstances, the Board of
Directors shall consist of not less than nine (9) or more than
twenty-one (21) persons, the exact number (i) to be fifteen (15)
persons upon adoption of this Article VII, subject to change
exclusively by the Board of Directors as provided in this paragraph
A.(1), and (ii) if to be changed from fifteen (15) persons to some
other number not less than nine (9) or more than twenty-one (21)
persons subsequent to adoption of this Article VII, to be fixed
from time to time exclusively by the Board of Directors pursuant to
a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution
is presented to the Board for adoption). At the annual meeting of
the shareholders of the Corporation at which this Article VII is
adopted, the directors shall be classified, with respect to the
time for which they severally hold office, into three classes, as
nearly equal in number as possible, as shall be provided in the
manner specified in the By-Laws, one class to hold office initially
for a term expiring at the annual meeting of shareholders to be
held in 1989, another class to hold office initially for a term
expiring at the annual meeting of shareholders to be held in 1990,
and another class to hold office initially for a term expiring at
the annual meeting of shareholders to be held in 1991, with the
members of each class to hold office until their successors are
elected and qualified. At each annual meeting of shareholders of
the Corporation following the annual meeting of shareholders of the
Corporation at which this Article VII 198
is adopted, the successors to the class of directors whose term
expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of shareholders held in the third
year following the year of their election. All directors elected
in connection with any election of directors by holders of
Preferred Stock, by holders of Preferred and Preference Stock, or
by holders of Preference Stock at any time when directors elected
by holders of Preferred Stock are serving, shall hold office until
the next annual meeting of shareholders and until their successors
have been elected and qualified or until any special meeting of
shareholders prior thereto held by virtue of any termination of the
rights of holders of Preferred Stock to elect directors. At any
such special meeting of shareholders, the Board of Directors shall
again become classified, on a basis consistent with that provided
in the second preceding sentence, provided, that any directors
entitled to be elected by holders of Preference Stock shall be
elected to the class whose term expires at the next annual meeting
and such rights of holders of Preference Stock to elect directors
shall continue to apply, so long as they continue in effect, to
directors of that class. The same procedure as set forth in the
foregoing proviso shall also apply in connection with any meeting
of shareholders at which holders of Preference Stock are entitled
to elect directors under circumstances where no members of the
existing Board of Directors have been elected by holders of
Preferred Stock. The election of directors need not be by ballot.
(2) Except as otherwise fixed pursuant to the provisions of Article
IV of this Certificate of Incorporation relating to the rights of
the holders of any class or series of Preferred or Preference Stock
having a preference over the Common Stock as to dividends or to
elect directors under specified circumstances, if the office of any
director becomes vacant for any reason, a majority of the directors
then in office, whether or not such majority shall constitute a
quorum, may choose a successor who, to the extent required by New
York law, shall hold office until the next annual meeting of
shareholders at which the election of directors is in the regular
order of business and until his successor has been elected and
199
qualified; provided that if New York law does not so require, such
director shall hold office for the full unexpired term of the
director whose seat he is filling, or any such vacancy in the board
of directors may be filled by the stockholders entitled to vote at
any meeting of stockholders, notice of which stockholders' meeting
shall have referred to the proposed election. Except as otherwise
fixed pursuant to the provisions of Article IV of this Certificate
of Incorporation relating to the rights of the holders of any class
or series of Preferred or Preference Stock having a preference over
the Common Stock as to dividends or to elect directors under
specified circumstances, in the event of an increase in the number
of directors pursuant to paragraph A.(1) of this Article VII, a
majority of the directors then in office, whether or not such
majority shall constitute a quorum, may elect the additional
director or directors who, to the extent required by New York law,
shall hold office until the next annual meeting of shareholders at
which the election of directors is in the regular order of business
and until his successor has been elected and qualified; provided
that if New York law does not so require, such director or
directors shall hold office for the full unexpired term of the
class of directors to which such director or directors is elected,
or any such director or directors may be elected by the
stockholders' meeting shall have referred to the proposed election.
No decrease in the number of authorized directors constituting the
entire Board of Directors shall shorten the term of any incumbent
director.
(3) Subject to the rights of the holders of any class or series of
Preferred or Preference Stock having preference over the Common
Stock as to dividends or to elect directors under specified
circumstances, any director, or the entire board of Directors, may
be removed from office at any time, but only for cause.
B. Notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote
of the holders of any particular class or series of the Voting
Stock required by law, this Certificate of Incorporation or any
Preferred or Preference Stock Designation, the affirmative vote of
the holders 200
of at least 80 percent of the combined voting power of all of the
then-outstanding shares of the Voting Stock, voting together as a
single class, shall be required to (i) alter, amend or repeal this
Article VII, or any provision hereof, or (ii) alter, amend or
repeal any provision of the By-Laws which is to the same effect as
Article VII, or any provision hereof.
C. For the purposes of this Article VII:
(1) The term "Voting Stock" shall mean all outstanding shares of
capital stock of all classes and series of the Corporation entitled
to vote generally in the election of directors of the Corporation,
in each case voting together as a single class.
(2) The term "Preferred or Preference Stock Designation" shall mean
any designation of the rights, powers and preferences of any class
or series of the Preferred or Preference Stock of the Corporation
made pursuant to Article IV of the Certificate of Incorporation of
the Corporation."
VII
To effect the amendments pursuant to clause (3) of paragraph III
above, the Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended so that the next to
last paragraph of Subdivision (H) of Paragraph (5) of Part D of
Article IV of the Corporation's Certificate of Incorporation, as
amended, will be further amended to read as follows:
"Upon any termination of the right of the holders of the Preferred
stock to elect members of the Board of Directors as aforesaid, the
term of office of the directors then in office shall terminate upon
the election of a new Board of Directors, as then constituted, at a
meeting of the holders of the class or classes of stock of the
Corporation then entitled to vote for directors, which meeting may
be held at any time after such termination of such right, and shall
be called upon request of holders of record of such class or
classes of stock then entitled to vote for directors, in like
manner and subject 201
to similar conditions as hereinbefore in this subdivision (H)
provided with respect to the call of a special meeting of
stockholders for the election of directors by the holders of the
Preferred Stock."
VIII
To effect the amendment pursuant to clause (4) of paragraph III
above, the Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby further amended so that Subdivision
(D) of Paragraph (8) of Part D of Article IV of the Corporation's
Certificate of Incorporation, as amended, will be further amended
to read as follows:
"(D) The respective shares of the Common Stock shall entitle the
holders thereof to one vote for each share of such Common Stock
held by them.
Notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote
of the holders of any particular class or series of the Voting
Stock required by law, this Certificate of Incorporation or any
Preferred or Preference Stock Designation, the affirmative vote of
the holders of at least 80 percent of the combined voting power of
all of the then-outstanding shares of the Corporation entitled to
vote in the election of directors, voting together as a single
class shall be required to (i) alter, amend or repeal this
Subdivision (D), or any provision hereof, or (ii) alter, amend or
repeal any provision of the By-Laws which is to the same effect a
Subdivision (D), or any provision hereof."
IX
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the Board of Directors of the
Corporation, followed by the votes cast in person or by proxy of
the holders of record of the majority of the outstanding shares of
the Corporation 202
entitled to vote at the stockholders' meeting at which such votes
were cast with relation to the proceedings provided for in this
Amendment and neither the Certificate of Incorporation nor any
other certificate filed pursuant to law requires a larger
proportion of votes. Such votes were cast in person or by proxy at
a stockholders' meeting duly held at the offices of the Corporation
at No. 300 Erie Boulevard West, in the City of Syracuse, New York
on the 3rd day of May, 1988, at 10:30 A.M., pursuant to Section 605
of the Business Corporation Law.
IN WITNESS WHEREOF we have made and subscribed this Certificate
this 25th day of May, 1988.
/s/ GARY J. LAVINE
Gary J. Lavine
Vice President, General
Counsel and Secretary
/s/ JOHN J. HENNIGAN
John J. Hennigan
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
GARY J. LAVINE, being duly sworn, deposes and says that he is Vice
President, General Counsel and Secretary of Niagara Mohawk Power
Corporation, the corporation named in and described in the
foregoing certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that, on his
information and belief, the statements contained therein are true.
/s/ GARY J. LAVINE
Gary J. Lavine
Vice President, General
Counsel and Secretary
203
Sworn to before me this
25th day of May, 1988.
/s/ MARILYN A. GARROW
Notary Public
MARILYN A. GARROW
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4684763
My Commission Expires March 30, 1990
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
______________________
204
State of New York
Department of State
Filed September 27, 1990
Tax--$50,000
Filing Fee--$60
Dated: September 13, 1990
WINTRHOP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
New York, New York 10004-1490
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Vice President and an
Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I.
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II.
205
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
III.
The Certificate of Incorporation as heretofore amended is hereby
further amended to effect changes authorized by Section 801(b) of
the Business Corporation Law, to wit: to increase the aggregate
number of shares of Preference Stock of the par value of $25 per
share which the Corporation shall have the authority to issue by an
additional 4,000,000 shares of such Preference Stock, so that the
authorized shares of capital stock shall consist of 3,400,000
shares of Preferred Stock with a par value of $100 each, 19,600,000
shares of Preferred Stock with a par value of $25 each, 8,000,000
shares of Preference Stock with a par value of $25 each and
150,000,000 shares of Common Stock with a par value of $1 each.
IV.
The Certificate of Incorporation of the Corporation, as amended, is
hereby further amended so that Parts A and C of Article IV, setting
forth the number of authorized shares and the number of shares of
each class, will be further amended to read as follows:
"IV. A. The total number of shares which the Corporation may have
is 181,000,000, of which 3,400,000 are to have a par value of $100
each, 27,600,000 are to have a par value of $25 each and
150,000,000 are to have a par value of $1 each."
"C. The shares of the Corporation are to be classified as follows:
3,400,000 shares are to be Preferred Stock with a par value of $100
each;
19,600,000 shares are to be Preferred Stock with a par value of $25
each;
8,000,000 shares are to be Preference Stock with a par value of $25
each; and
150,000,000 shares are to be Common Stock with a par value of $1
206
each."
V.
The stated capital of the Corporation will not be affected by this
Amendment to the Certificate of Incorporation of the Corporation.
VI.
The Certificate of Incorporation of the Corporation, as amended, is
hereby further amended so that Subdivision (D) of Paragraph (6) of
Part D of Article IV will be further amended to read as follows:
"(D) The sum payable per share upon the voluntary dissolution,
liquidation or winding up of the Corporation and the sum payable
per share upon the involuntary dissolution, liquidation or winding
up of the Corporation, which sums, in each and every case, shall be
a stated amount (not less than $25) with respect to dissolution,
liquidation or winding up during any specified period or periods,
plus an amount equal to the dividends accrued and unpaid thereon,
whether or not earned or declared, and payable out of the net
assets of the Corporation, whether capital or surplus;"
VII.
The Certificate of Incorporation of the Corporation, as amended, is
hereby further amended so that Section (b) of Subdivision (E) of
Paragraph (7) of Part D of Article IV will be further amended to
read as follows:
"(b) Issue any shares of Preference Stock entitled to payment of
an amount per share upon involuntary dissolution, liquidation, or
winding up of the Corporation in excess of $25 per share plus an
amount equal to the dividends accrued and unpaid thereof, whether
or not earned or declared;"
VIII.
207
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the Board of Directors of the
Corporation, followed by the votes cast in person or by proxy of
the holders of record of a majority of the outstanding shares of
the Corporation entitled to vote at the stockholders' meeting at
which such votes were cast with relation to the proceedings
provided for in this Amendment and neither the Certificate of
Incorporation nor any other certificate filed pursuant to law
requires a larger proportion of votes. Such votes were cast in
person or by proxy at a stockholders' meeting duly held at the
Everson Museum at 401 Harrison Street in the City of Syracuse, New
York on the 1st day of May, 1990, at 10:30 A.M. pursuant to Section
605 of the Business Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 13th day of September, 1990.
By /s/ GARY J. LAVINE
Gary J. Lavine
Vice President,
General Counsel and Secretary
By /s/ HAROLD J. BOGAN
Harold J. Bogan
Assistant Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
GARY J. LAVINE, being duly sworn, deposes and says that he is Vice
President, General Counsel and Secretary of Niagara Mohawk Power
Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
208
/s/ GARY J. LAVINE
Gary J. Lavine
Vice President,
General Counsel and Secretary
Sworn to before me this
13th day of September, 1990.
/s/ MARILYN A. GARROW
Notary Public
Marilyn A. Garrow
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4684763
My Commission Expires March 30, 1992
209
[CONFORMED COPY]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_________________
State of New York
Department of State
Filed: October 18, 1991
Tax: $ None
By PJC
ONONDAGA
Dated: October 17, 1991
210
WINTHROP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
New York, New York 10004-1490
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
_________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Senior Vice President and
an Assistant Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby
certify:
I.
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II.
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
A Certificate of Change of Name of Niagara Hudson Public Service
Corporation to Central New York Power Corporation was filed in the
Department of State on September 15, 1937.
A "Certificate of Consolidation of New York Power and Light
Corporation and Buffalo Niagara Electric Corporation and Central
New York Power Corporation into Central New York Power Corporation
which is to survive the consolidation and be named Niagara Mohawk
Power Corporation" was filed in the Department of State on January
5, 1950. Said Certificate of Consolidation is hereinafter
sometimes referred 211
to as the "1950 Certificate of Consolidation".
In accordance with the provisions of Subdivision (E) of Paragraph
(5) of Part D of Article IV, under the heading "General Provisions
Applicable to All Series of Preferred Stock", of the 1950
Certificate of Consolidation of the holders of record of at least a
majority of the total number of shares of Preferred Stock of all
series then outstanding adopted the following resolution at a
meeting called for that purpose and held on December 5, 1956 in the
manner prescribed by the By-Laws of the Corporation:
"Resolved, that consent be and it hereby is given to the issue by
the Corporation of unsecured indebtedness in a total principal
amount not exceeding at any one time outstanding $50,000,000 over
and above the principal amount of unsecured indebtedness otherwise
permitted by the provisions of Subdivision (E) of Paragraph (5) of
Part D of Article IV of the Certificate of Consolidation of the
Corporation filed January 5, 1950."
III.
The Certificate of Incorporation, as heretofore amended, is hereby
further amended by the addition of the following provisions stating
the number, designation, relative rights, preferences, and
limitations of a twenty-fifth additional series of Preferred Stock,
to consist of 914,005 shares of the par value of $25.00 per share
of the authorized 19,600,000 shares of Preferred Stock of the
Corporation of the par value of $25.00 per share, as fixed by the
Board of Directors of the Corporation before the issuance of such
series, such provisions so added to be designated as Paragraph (4Y)
(of Part D of Article IV of the 1950 Certificate of Consolidation
as amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) and to read as follows:
Particular Provisions Applicable to Preferred Stock, 7.85% Series
212
(4Y) The number, designation, relative rights, preferences and
limitations of the twenty-fifth additional series of Preferred
Stock of the Corporation as fixed by the Board of Directors (in
addition to those set forth under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments) are as follows:
(A) The number of shares to constitute the twenty-fifth additional
series shall be 914,005 shares and the designation of such series
shall be "Preferred Stock, 7.85% Series".
(B) The dividend rate of the Preferred Stock, 7.85% Series shall
be seven and eighty-five one-hundredths percent (7.85%) per annum
of the par value thereof (computed on the basis of a 360-day year
of twelve 30-day months). The dividends on each share of the
Preferred Stock, 7.85% Series shall be cumulative from the date of
the original issue thereof and shall be payable on the last day of
March, June, September and December, commencing December 31, 1991.
So long as any shares of the Preferred Stock, 7.85% Series shall be
outstanding, the Corporation shall not declare any dividend on the
Common Stock or any other stock ranking as to dividends or assets
junior to the Preferred Stock, 7.85% Series, or make any payment on
account of, or set apart money for a sinking or other analogous
fund for, the purchase, redemption or other retirement of any
shares of Common Stock or other such junior stock, or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash or property or in obligations or stock of the
Corporation (other than stock ranking as to dividends and assets
junior to the Preferred Stock, 7.85% Series), unless at the date of
such declaration in the case of any such dividend, or at the date
of any such other payment, setting apart or distribution, all
dividends payable on the Preferred Stock, 7.85% Series shall have
been fully paid, or declared and set apart for payment.
213
(C) Except as provided under the heading "General Provisions
Applicable to All Series of Preferred Stock" in Paragraph (5) of
Part D of Article IV of the 1950 Certificate of Consolidation as
amended by Article V of the 1950 Certificate of Amendment and
subsequent amendments, the Preferred Stock, 7.85% Series shall have
no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 7.85% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $25.00 per
share plus an amount equal to the dividends accumulated and unpaid
on such share to the date of payment, whether or not earned or
declared.
(E) The sum per share for the Preferred Stock, 7.85% Series
payable to the holders thereof upon the involuntary dissolution,
liquidation or winding up of the Corporation shall be $25.00 per
share plus an amount equal to the dividends accumulated and unpaid
on such share to the date of payment, whether or not earned or
declared.
(F) The shares of the Preferred Stock, 7.85% Series shall be
redeemable at the option of the Board of Directors of the
Corporation, either as a whole or in part, at any time on or after
September 30, 1996 at the following redemption prices, in each case
plus an amount equal to the dividends accumulated and unpaid on
such share to the date of payment, whether or not earned or
declared:
For the
Twelve Months Optional Redemption
Ended September 30 Price Per Share
1997............................................. $25.56
1998............................................. 25.28
1999............................................. 25.00
2000............................................. 25.00
2001............................................. 25.00
214
(G) The shares of the Preferred Stock, 7.85% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 7.85% Series, but shall not be convertible into or
exchangeable for other securities of the Corporation.
(H) As a sinking fund with respect to the shares of the Preferred
Stock, 7.85% Series the Corporation will, subject to the provisions
of subdivision (J) below, call for redemption and retire on
September 30, 1997 and on each September 30 thereafter to and
including September 30, 2001 (so long as any shares of the
Preferred Stock, 7.85% Series are outstanding) 182,801 shares of
the Preferred Stock, 7.85% Series (or the number of the shares of
the Preferred Stock, 7.85% Series then outstanding if less than
182,801) in each case at a redemption price of $25.00 per share,
plus an amount equal to the dividends accumulated and unpaid on
such shares, whether or not earned or declared. No redemption of
shares of the Preferred Stock, 7.85% Series pursuant to subdivision
(F) above or subdivision (I) below shall constitute a retirement of
such shares in lieu of or as a credit against any sinking fund
retirement required by this subdivision (H).
(I) The Corporation may, at its option, on September 30, 1997 and
on each September 30 thereafter to and including September 30,
2001, redeem up to 182,801 shares of the Preferred Stock, 7.85%
Series or any lesser number of shares which shall constitute all of
the then outstanding shares of the Preferred Stock, 7.85% Series,
in addition to shares then to be redeemed for the sinking fund
pursuant to subdivision (H) above, in each case at a redemption
price of $25.00 per share, plus an amount equal to the dividends
accrued and unpaid on such shares, whether or not earned or
declared, which privilege and option so to redeem shall be non-
cumulative.
(J) Shares of the Preferred Stock, 7.85% Series shall be called
for redemption for the sinking fund as required by subdivision (H)
above in the manner prescribed for redemption of shares of
Preferred Stock under the heading "General Provisions Applicable to
All Series of Preferred Stock" in Paragraph (5) of Part D of
Article IV of the 1950 Certificate of Consolidation as amended by
Article V of the 1950 215
Certificate of Amendment and subsequent amendments. Such
redemption shall be mandatory and not at the option of the
Corporation but shall be subject to any applicable restrictions of
law. Nevertheless, the obligations of the Corporation to redeem
shares of the Preferred Stock, 7.85% Series annually commencing on
September 30, 1997 for such sinking fund, pursuant to said
subdivision (H), shall be cumulative. So long as any shares of the
Preferred Stock, 7.85% Series shall be outstanding, the Corporation
shall not declare any dividend on the Common Stock or any other
stock ranking as to dividends or assets junior to, or pari passu
with, the Preferred Stock, 7.85% Series or make any payment on
account of, or set apart money for a sinking or other analogous
fund for, the purchase, redemption or other retirement of any
shares of Common Stock or other such junior or pari passu stock, or
make any distribution in respect thereof, either directly or
indirectly, and whether in cash or property or in obligations or
stock of the Corporation (other than stock ranking as to dividends
and assets junior to the Preferred Stock, 7.85% Series), unless at
the date of declaration in the case of any such dividend, or at the
date of any such other payment, setting apart or distribution, no
sinking fund retirement required by subdivision (H) shall be in
arrears. If the Corporation shall be prevented for any reason from
redeeming the number of shares of Preferred Stock, 7.85% Series,
which it is required to retire on any such September 30, the
deficit shall be made good on the first succeeding September 30 on
which the Corporation shall not be prevented from redeeming such
shares of Preferred Stock, 7.85% Series. Shares of the Preferred
Stock, 7.85% Series, purchased by the Corporation may be applied to
satisfy the sinking fund on one or more of the foregoing September
30 dates.
(K) In every case of redemption of less than all of the
outstanding shares of Preferred Stock, 7.85% Series pursuant to
subdivision (F), (H) or (I) above, the shares to be redeemed shall
be chosen by lot, in any manner deemed appropriate by the transfer
agent of the Preferred Stock, 7.85% Series, and redemption shall
otherwise be in the manner prescribed under the heading "General
Provisions Applicable to All Series Preferred Stock" in Paragraph
(5) of Part D of Article IV of the 1950 Certificate of
Consolidation as amended by 216
Article V of the 1950 Certificate of Amendment and subsequent
amendments.
(L) Shares of Preferred Stock, 7.85% Series redeemed (pursuant to
the sinking fund or otherwise), purchased or otherwise acquired by
the Corporation shall be cancelled and restored to the status of
authorized but unissued shares of Preferred Stock of the par value
$25.00 per share without serial designation and may be reissued by
the Corporation from time to time as Preferred Stock of any other
series of the par value of $25.00 per share as may be fixed from
time to time by the Board of Directors.
(M) The Shares of the Preferred Stock, 7.85% Series shall be
subject to the consent set forth in the last subparagraph of
Paragraph II of this Certificate to the same extent and with the
same effect as all series of Preferred Stock outstanding on
December 5, 1956 are so subject.
IV.
The amendments of the Certificate of Incorporation effected by this
Certificate were authorized by action of the Board of Directors of
the Corporation, pursuant to Section 502 of the Business
Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 17th day of October, 1991.
By /s/ JOHN W. POWERS
John W. Powers
Senior Vice President--
Finance and Corporate Services
By /s/ HAROLD J. BOGAN
Harold J. Bogan
Assistant Secretary
[CORPORATE SEAL]
217
STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss.:
JOHN W. POWERS, being duly sworn, deposes and says that he is
Senior Vice President--Finance and Corporate Services of Niagara
Mohawk Power Corporation, the corporation named in and described in
the foregoing Certificate, that he has read and executed the
foregoing Certificate and knows the contents thereof and that the
statements contained therein are true.
/s/ JOHN W. POWERS
John W. Powers
Senior Vice President--Finance
and Corporate Services
Sworn to before me this
17th day of October, 1991.
/s/ E. ANN TAROLLI
Notary Public
E. ANN TAROLLI
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4639163
My Commission Expires 12/31/92
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., October 18, 1991
CASE 89-M-079--Petition of Niagara Mohawk Power Corporation for
authority under Section 69 of the Public Service Law to issue
shares of one or more new series of Preference Stock, $25 par
value, or Preferred Stock, $25 par value, having an aggregate par
value of up to $25,000,000.
* * * *
218
The Public Service Commission hereby consents to and approve this
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF
NIAGARA MOHAWK POWER CORPORATION UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW, executed October 17, 1991, in accordance with the
order of the Public Service Commission adopted July 12, 1991.
By the Commission,
By /s/ John J. Kelliher
Secretary
[SEAL OF THE COMMISSION]
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________________
219
State of New York
Department of State
Filed:
Tax:
By
ONONDAGA
Dated: May 4, 1994
WINTHROP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
New York, New York 10004-1490
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________________
Pursuant to the provisions of Section 805 of the BUSINESS
CORPORATION LAW, the undersigned, being a Vice President and the
Secretary of NIAGARA MOHAWK POWER CORPORATION, hereby certify:
I.
220
The name of the Corporation is Niagara Mohawk Power Corporation.
It was originally incorporated under the name of Niagara Hudson
Public Service Corporation.
II.
The Certificate of Consolidation forming the Corporation was filed
in the Department of State on July 31, 1937.
III.
The Certificate of Incorporation as heretofore amended is hereby
further amended to effect changes authorized by Section 801 (b)(7)
of the Business Corporation Law, to wit: to increase the aggregate
number of shares of Common Stock of the par value of $1 per share
which the Corporation shall have the authority to issue by an
additional 35,000,000 shares of such Common Stock, so that the
authorized shares of capital stock shall consist of 3,400,000
shares
of Preferred Stock with a par value of $100 each, 19,600,000 shares
of Preferred Stock with a par value of $25 each, 8,000,000 shares
of Preference Stock with a par value of $25 each and 185,000,000
shares of Common Stock with a par value of $1 each.
IV.
The Certificate of Incorporation of the Corporation, as amended, is
hereby further amended so that Parts A and C of Article IV, setting
forth the number of authorized shares and the number of shares of
each class, will be further amended to read as follows:
"IV.A. The total number of shares which the Corporation may have
is 216,000,000, of which 3,400,000 are to have a par value of $100
each, 27,600,000 are to have a par value of $25 each and
185,000,000 are to have a par value of $1 each."
"C. The shares of the Corporation are to be classified as follows:
221
3,400,000 shares are to be Preferred Stock
with a par value of $100 each;
19,600,000 shares are to be Preferred Stock
with a par value of $25 each;
8,000,000 shares are to be Preference Stock
with a par value of $25 each; and
185,000,000 shares are to be Common Stock
with a par value of $1 each."
V.
The stated capital of the Corporation will not be affected by this
Amendment to the Certificate of Incorporation of the Corporation.
VI.
This Amendment to the Certificate of Incorporation of the
Corporation was duly authorized by the Board of Directors of the
Corporation, followed by the votes cast in person or by proxy of
the holders of record of a majority of the outstanding shares of
the Corporation entitled to vote at the stockholders' meeting at
which such votes were cast with relation to the proceedings
provided for in this Amendment and neither the Certificate of
Incorporation nor any other certificate filed pursuant to law
requires a larger proportion of votes. Such votes were cast in
person or by proxy at a stockholders' meeting duly held at the
Onondaga County Convention Center, 800 South State Street in the
City of Syracuse, New York on the 3rd day of May, 1994, at 10:30
A.M., pursuant to Section 605 of the Business Corporation Law.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 4th day of May, 1994.
By _________________________
Paul J. Kaleta
Vice President - Law and
General Counsel
222
By ________________________
Harold J. Bogan
Secretary
[Corporate Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF ONONDAGA )
Paul J. Kaleta, being duly sworn, deposes and says that he is Vice
President - Law and General Counsel of Niagara Mohawk Power
Corporation, the corporation named in and described in the
foregoing Certificate, that he has read and executed the foregoing
Certificate and knows the contents thereof and that the statements
contained therein are true.
Paul J. Kaleta
Vice President - Law and General
Counsel
Sworn to before me this
4th day of May, 1994
Notary Public
Harold J. Bogan, being duly sworn, deposes and says that he is
Secretary of Niagara Mohawk Power Corporation, the corporation
named in and described in the foregoing Certificate, that he has
read and executed the foregoing Certificate and knows the contents
thereof and that the statements contained therein are true.
223
Harold J. Bogan
Secretary
Sworn to before me this
4th day of May, 1994.
Notary Public
[ENDORSED]
CERTIFICATE OF CONSOLIDATION
OF
ANTWERP LIGHT AND POWER COMPANY,
BALDWINSVILLE LIGHT AND HEAT COMPANY OF
BALDWINSVILLE, N.Y.,
FULTON FUEL AND LIGHT COMPANY,
FULTON LIGHT, HEAT AND POWER COMPANY,
MALONE LIGHT AND POWER COMPANY,
NORTHERN NEW YORK UTILITIES INC.,
THE NORWOOD ELECTRIC LIGHT AND POWER COMPANY,
PEOPLES GAS AND ELECTRIC COMPANY OF OSWEGO,
ST. LAWRENCE COUNTY UTILITIES, INC.,
ST. LAWRENCE VALLEY POWER CORPORATION,
THE SYRACUSE LIGHTING COMPANY INC.
AND
UTICA GAS AND ELECTRIC COMPANY
FORMING
NIAGARA HUDSON PUBLIC SERVICE CORPORATION
__________________
224
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED July 31, 1937
TAX: $ None
FILING FEE $25
EDWARD J. FLYNN
Secretary of State
By H. J. FISHER
Cashier
LeBOEUF, WINSTON, MACHOLD & LAMB
15 Broad Street,
New York, N. Y.
CERTIFICATE OF CONSOLIDATION
OF
ANTWERP LIGHT AND POWER COMPANY
BALDWINSVILLE LIGHT AND HEAT COMPANY OF BALDWINSVILLE, N. Y.
FULTON FUEL AND LIGHT COMPANY
FULTON LIGHT, HEAT AND POWER COMPANY
MALONE LIGHT AND POWER COMPANY
NORTHERN NEW YORK UTILITIES INC.
THE NORWOOD ELECTRIC LIGHT AND POWER COMPANY
PEOPLES GAS AND ELECTRIC COMPANY OF OSWEGO
ST. LAWRENCE COUNTY UTILITIES, INC.
ST. LAWRENCE VALLEY POWER CORPORATION
THE SYRACUSE LIGHTING COMPANY INC.
AND
UTICA GAS AND ELECTRIC COMPANY
INTO
NIAGARA HUDSON PUBLIC SERVICE CORPORATION
_______________________
225
Pursuant to subdivision 4 of Section 11 of the
Transportation Corporations Law and Section
86 of the Stock Corporation Law.
_______________________
We, Thomas N. McCarter, Jr. and Ernest Johnston, being respectively
President and Secretary of ANTWERP LIGHT AND POWER COMPANY; Ray W.
Porter and Ernest Johnston, being respectively President and
Secretary of BALDWINSVILLE LIGHT AND HEAT COMPANY OF BALDWINSVILLE,
N.Y., FULTON FUEL AND LIGHT COMPANY, FULTON LIGHT, HEAT AND POWER
COMPANY and PEOPLES GAS AND ELECTRIC COMPANY OF OSWEGO; H. Edmund
Machold and Ernest Johnston, being respectively President and
Secretary of NORTHERN NEW YORK UTILITIES INC.; Edward Wright and
Ernest Johnston, being respectively President and Secretary of
MALONE LIGHT AND POWER COMPANY, THE NORWOOD ELECTRIC LIGHT AND
POWER COMPANY, ST. LAWRENCE COUNTY UTILITIES, INC., and ST.
LAWRENCE VALLEY POWER CORPORATION; A. Dean Dudley and Ernest
Johnston, being respectively President and Secretary of THE
SYRACUSE LIGHTING COMPANY INC.; and Leland D. McCormac and Sara
Harris, being respectively Executive Vice-President and Secretary
of UTICA GAS AND ELECTRIC COMPANY, hereby certify:
FIRST: The names of each of the corporations to be included in the
consolidation are:
Antwerp Light and Power Company
Baldwinsville Light and Heat Company of Baldwinsville, N.Y.
Fulton Fuel and Light Company
Fulton Light, Heat and Power Company
Malone Light and Power Company
Northern New York Utilities Inc.
The Norwood Electric Light and Power Company
Peoples Gas and Electric Company of Oswego
St. Lawrence County Utilities, Inc.
St. Lawrence Valley Power Corporation
The Syracuse Lighting Company Inc.
Utica Gas and Electric Company
226
The date of the filing of the Certificate of Incorporation of
Antwerp Light and Power Company in the office of the Secretary of
State was January 20, 1910.
The date of the filing of the Certificate of Incorporation of
Baldwinsville Light and Heat Company of Baldwinsville, N. Y. in the
office of the Secretary of State was August 21, 1902.
The date of the filing of the Certificate of Incorporation of
Fulton Fuel and Light Company in the office of the Secretary of
State was September 15, 1902.
The date of the filing of the Certificate of Incorporation of
Fulton Light, Heat and Power Company in the office of the Secretary
of State was March 14, 1902.
The date of the filing of the Agreement of Consolidation forming
Malone Light and Power Company in the office of the Secretary of
State was May 4, 1899.
The date of the filing of the Certificate of Incorporation of
Northern New York Utilities Inc. in the office of the Secretary of
State was May 12, 1913.
The date of the filing of the Certificate of Incorporation of The
Norwood Electric Light and Power Company in the office of the
Secretary of State was September 5, 1894.
The date of the filing of the Certificate of Incorporation of
Peoples Gas and Electric Company of Oswego in the office of the
Secretary of State was April 26, 1900.
The date of the filing of the Certificate of Consolidation forming
St. Lawrence County Utilities, Inc. in the office of the Secretary
of State was September 24, 1923.
The date of the filing of the Certificate of Consolidation forming
227
St. Lawrence Valley Power Corporation in the office of the
Secretary of State was June 26, 1924.
The date of the filing of the Certificate of Consolidation forming
The Syracuse Lighting Company Inc. in the office of the Secretary
of State was February 28, 1924.
The date of the filing of the Certificate of Incorporation of Utica
Gas and Electric Company in the office of the Secretary of State
was May 10, 1902.
SECOND: The total number of shares which Antwerp Light and Power
Company, Baldwinsville Light and Heat Company of Baldwinsville,
N.Y., Fulton Fuel and Light Company, Fulton Light, Heat and Power
Company, Malone Light and Power Company, Northern New York
Utilities Inc., The Norwood Electric Light and Power Company,
Peoples Gas and Electric Company of Oswego, St. Lawrence County
Utilities, Inc., St. Lawrence Valley Power Corporation, The
Syracuse Lighting Company Inc. and Utica Gas and Electric Company
(constituent corporations) are authorized to issue, the number
thereof which have a par value, if any, together with the par value
of each, and the number thereof which are without par value, are as
follows:
Total No. of
Shares Authorized
No Par Value
Name of Company Par Value Par Value If any
Antwerp Light and Power Company .... 450 $100
Baldwinsville Light and Heat Company
of Baldwinsville, N.Y. .................... 1,000 100
Fulton Fuel and Light Company........... 2,500 50
Fulton Light, Heat and Power Company. 8,000 1,000
68,000
Malone Light and Power Company........ 70,000
Northern New York Utilities Inc. ......... 100,000 100
228
400,000
The Norwood Electric Light and Power
Company...................................... 1,500 100
Peoples Gas and Electric Company of
Oswego........................................ 75,000
St. Lawrence County Utilities, Inc. ....... 60,000 100
St. Lawrence Valley Power Corporation.. 130,000 100
The Syracuse Lighting Company Inc. ..... 100,000 100
1,075,000
Utica Gas and Electric Company........... 60,000 100
500,000
THIRD: The name of the consolidated corporation, which is to be a
new corporation and not one of the constituent corporations, is
NIAGARA HUDSON PUBLIC SERVICE CORPORATION. (Said consolidated
corporation is herein sometimes referred to as "the Corporation" or
"the New Corporation.")
FOURTH: The total number of shares that may be issued by the New
Corporation is Two Million Six Hundred Fifty Thousand (2,650,000)
shares. The number of shares which are to have a par value is
three
Hundred Thousand (300,000) shares, and the par value of each share
is to be One Hundred Dollars ($100). The number of shares which
are to be without par value is Two Million Three Hundred Fifty
Thousand (2,350,000) shares.
The capital of the Corporation shall be at least equal to the sum
of the aggregate par value of all issued shares having a par value,
plus Twenty-five Dollars ($25) in respect of every issued share
without par value, plus such amounts as from time to time by
resolution of the Board of Directors may be transferred thereto.
The capital of the Corporation shall not be less than Fifty-seven
Million Five Hundred Forty-two Thousand Four Hundred Dollars
($57,542,400).
Subject to the laws creating and defining the duties of the Public
229
Service Commission, the Corporation may issue and may sell its
authorized shares without par value from time to time, for such
consideration as, from time to time, may be fixed by the board of
directors.
The shares of the Corporation are to be classified. The Three
Hundred Thousand (300,000) shares of the par value of One Hundred
Dollars ($100) per share shall be classified as Preferred Stock,
and the Two Million Three Hundred Fifty Thousand (2,350,000) shares
without par value shall be classified as Common Stock.
The shares of the Preferred Stock may be issued, from time to time,
in series. The designations, preferences, privileges and voting
powers of the Preferred Stock and of the Common Stock, and the
restrictions or qualifications thereof, are hereinafter stated.
The designations, preferences, privileges and voting powers of the
shares of the first series of Preferred Stock (to be known as the
Preferred Stock, 5% Series) and the restrictions or qualifications
thereof (insofar as they differ from the provisions which are
applicable to all of the shares of the Preferred Stock irrespective
of series) are likewise hereinafter stated.
The Board of Directors is authorized to fix, from time to time
before issuance, the designations, preferences, privileges and
voting powers of the shares of each subsequent series of the
Preferred Stock and the restrictions or qualifications thereof,
respectively, except for such provisions as are applicable to all
the shares of the Preferred Stock, irrespective of series.
PREFERRED STOCK.
Limitations as to Variations between Series.
Two Hundred Fifty-nine Thousand (259,000) shares of the Three
Hundred Thousand (300,000) shares of the Preferred Stock may be
initially issued in the 5% Series. The remaining shares of the
Preferred Stock may be issued in the 5% Series or in such other one
or more series as 230
may be fixed from time to time by the Board of Directors, each of
such other series to be distinctively designated. All shares of
any one series of Preferred Stock shall be alike in every
particular, and the shares of the 5% Series, and of all series
hereafter created, shall rank equally and be identical in all
respects, except in respect to the matters set forth in the
following paragraphs lettered (A) to (F), inclusive:
(A) Designation of series;
(B) The dividend rate;
(C) The dates on which dividends, if declared, shall be payable;
(D) The sum payable per share upon the voluntary dissolution,
liquidation or winding up of the Corporation and the sum payable
per share upon the involuntary dissolution, liquidation or winding
up of the Corporation, which sums, in each and every case, shall be
a stated amount (not less than $100) plus accrued dividends to the
date of distribution, such date of distribution to be the date on
which the sum so to be distributed shall be paid or set apart for
payment;
(E) Whether or not the shares of such series shall be redeemable,
and if made redeemable, the redemption price per share, which
price, in every case, shall be a stated amount plus accrued
dividends to the date of redemption; and
(F) Whether or not the shares of such series shall be made
convertible into or exchangeable for shares of any other class or
classes or of any other series of the same or any other class or
classes of stock of the Corporation, and if made convertible or
exchangeable, the conversion price or prices, or the rates of
exchange, and the terms and conditions, if any, on which such
conversion or exchange may be made.
Particular Provisions Applicable to the Preferred Stock,
5% Series.
231
The designations, preferences, privileges and voting powers and the
restrictions or qualifications thereof of the shares of the
Preferred Stock, 5% Series (insofar as they differ from the
provisions which are applicable to all the shares of the Preferred
Stock, irrespective of series) are as follows:
(A) The series shall be designated as Preferred Stock, 5% Series;
(B) The dividend rate thereon shall be five per cent (5%) per
share per annum and no more;
(C) The dates on which dividends, if declared, shall be payable
are February 1, May 1, August 1, and November 1 in each year;
(D) The sum payable per share upon any voluntary liquidation,
dissolution or winding up of the Corporation shall be One Hundred
Five Dollars ($105) per share, and the sum payable upon any
involuntary liquidation, dissolution or winding up of the
Corporation shall be One Hundred Dollars ($100) per share, plus, in
each case, accrued dividends to the date of distribution, such date
of distribution to be the date on which the sum so to be
distributed shall be paid or set apart for payment.
(E) The shares of Preferred Stock, 5% Series shall be redeemable
at the option of the Corporation, either as a whole or in part, at
any time at One Hundred Five Dollars ($105) per share, plus accrued
dividends to the date of redemption;
(F) The shares of the Preferred Stock, 5% Series shall not be
convertible into or exchangeable for shares of any other class or
classes or of any other series of the same or any other class or
classes of stock of the Corporation.
General Provisions Applicable to all Series of Preferred Stock.
The following general provisions shall apply to all the shares of
Preferred Stock of the Corporation, irrespective of series;
232
(A) The holders of the Preferred Stock of each series shall be
entitled to receive dividends, payable on such dates as may be
fixed for said series, when and as declared by the Board of
Directors, at the rates or in the amounts fixed for the respective
series and no more. Dividends on each share of each series shall
commence to accrue and be cumulative from the first day of the
current dividend period within which such share was issued;
provided, however, that dividends shall not commence to accrue and
be cumulative in respect of any share from a date prior to the date
of the filing of the Certificate of Consolidation forming the
Corporation. A "dividend period" is the period between any two
consecutive dividend payment dates, including the first of such
dates, as fixed for the series to which a share or shares shall
belong. If for any dividend period or periods dividends shall not
have been paid or declared and set apart for payment upon all
outstanding shares of Preferred Stock at the rates determined for
the respective series, the deficiency shall be fully paid or
declared and set apart for payment before any dividends shall be
declared or paid upon or set apart for the Common Stock of the
Corporation; provided, however, that dividends in full shall not be
declared and set apart for payment or paid on the Preferred Stock
of any one series for any dividend period unless dividends in full
have been or are contemporaneously declared and set apart for
payment or paid on the Preferred Stock of all series, for all the
dividend periods terminating on the same or an earlier date. When
the stated dividends are not paid in full, the shares of all series
of the Preferred Stock shall share ratably in the payment of
dividends including accumulations, if any, in accordance with the
sums which would be payable on said shares if all dividends were
declared and paid in full. Accumulations of dividends shall not
bear interest.
(B) When full cumulative dividends as aforesaid upon the shares of
all series of the Preferred Stock then outstanding for all past
dividend periods and for the current dividend period shall have
been paid or declared and set apart for payment, the Board of
Directors may declare dividends on the Common Stock of the
Corporation, and no holder of shares of any series of the Preferred
Stock shall be entitled as such holder to share therein.
233
(C) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of
shares of the Preferred Stock of each and every series shall be
entitled to receive out of the assets of the Corporation, whether
capital or surplus, the amounts per share fixed for the shares of
the respective series and payable upon such dissolution,
liquidation or winding up, plus, in the case of each share, an
amount equal to all dividends on such share accrued and in arrears,
whether or not earned or declared, before any distribution of the
assets to be distributed shall be made to the holders of the Common
Stock of the Corporation.
If the assets distributable on such dissolution, liquidation or
winding up shall be insufficient to permit the payment to the
holders of the Preferred Stock of the full amounts aforesaid, then
said assets shall be distributed ratably among the holders of the
respective series of Preferred Stock in accordance with the sums
which would be payable on such dissolution, liquidation or winding
up if all sums payable were discharged in full. After payment to
the holders of the Preferred Stock of the full preferential amounts
hereinbefore provided for, the holders of the Preferred Stock as
such shall have no right or claim to any of the remaining assets of
the Corporation, either upon any distribution of surplus assets or
upon dissolution, liquidation or winding up. The remaining assets
to be
distributed, if any, upon a distribution of surplus assets or upon
dissolution, liquidation or winding up, shall be distributed among
the holders of the Common Stock of the Corporation, subject to the
provisions hereof in respect thereto. The sale of all the property
of the Corporation to, or the merger or consolidation of the
Corporation into or with, any other corporation shall not be deemed
to be a dissolution, liquidation or winding up for the purposes of
this paragraph.
(D) At the option of the Board of Directors of the Corporation,
the Corporation may redeem any series of Preferred Stock which has
been made redeemable, or any part of any series, at any time at the
redemption price determined for such series; provided, however,
that not less than thirty nor more than sixty days previous to the
date fixed for redemption a notice of the time and place thereof
shall be 234
given to the holders of record of the Preferred Stock so to be
redeemed, by mail, or by mail and publication, in such manner as
may be prescribed by the By-Laws of the Corporation, or by
resolution of the Board of Directors; and, provided, further, that
in every case of redemption of less than all of the outstanding
shares of any one series of Preferred Stock, such redemption shall
be made pro rata, or the shares of such series to be redeemed shall
be chosen by lot in such manner as may be prescribed by resolution
of the Board of Directors. At any time after notice of redemption
has been given in the manner prescribed by the By-Laws of the
Corporation or by resolution of the Board of Directors to the
holders of stock so to be redeemed, the Corporation may deposit the
aggregate redemption price with a bank or trust company having its
principal office in the Borough of Manhattan, The City of New York,
named in such notice, payable on the date fixed for redemption as
aforesaid and in the amounts aforesaid to the respective orders of
the holders of the shares so to be redeemed, on endorsement to the
Corporation or otherwise, as may be required, and upon surrender of
the certificates for such shares. Upon deposit of said money as
aforesaid, or, if no such deposit is made, upon said redemption
date (unless the Corporation defaults in making payment of the
redemption price as set forth in such notice), such holders shall
cease to be stockholders with respect to said shares, and from and
after the making of said
deposit, or, if no such deposit is made, after the redemption date
(the Corporation not having defaulted in making payment of the
redemption price as set forth in such notice), the said holders
shall have no interest in or claim against the Corporation with
respect to said shares, but shall be entitled only to receive said
moneys on the date fixed for redemption as aforesaid from said bank
or trust company, or from the Corporation, as the case may be,
without interest thereon, upon endorsement, if required, and
surrender of the certificates as aforesaid.
In case the holder of any such Preferred Stock shall not, within
six years after said deposit, claim the amount deposited as above
stated for the redemption thereof, the Depositary shall upon demand
pay over to the Corporation such amounts so deposited and the
Depositary shall thereupon be relieved from all responsibility to
the holder thereof.
235
Any shares of Preferred Stock redeemed may, at the option of the
Corporation, be held as authorized but unissued and may be
reissued.
Nothing herein contained shall limit any legal right of the
Corporation to purchase any shares of the Preferred Stock.
(E) At all meetings of the stockholders of the Corporation the
holders of the Preferred Stock of all series shall be entitled to
one vote for each share of such Preferred Stock held by them
respectively.
Whenever four full quarterly dividends on the Preferred Stock shall
be in arrears, the holders of the Preferred Stock, voting as a
class, shall be entitled to elect one-third, but in no event less
than three, of the total number of Directors to be elected at the
next annual meeting of stockholders and at any subsequent annual
meeting of stockholders of the Corporation held during the
continuance of such default in payment of dividends, provided,
however, that when all accrued dividends in arrears shall have been
paid or declared and set apart for payment, the right of the
holders of the Preferred Stock so to elect such Directors shall
cease, subject to revival upon the occurrence of any subsequent
like event of default.
COMMON STOCK.
(A) Out of any assets of the Corporation available for dividends
remaining after full dividends on all stock having priority over
the Common Stock shall have been paid or declared and set apart for
payment and after making such provision, if any, as the Board of
Directors may deem necessary or advisable for working capital and
reserves, then, and not otherwise, dividends may be paid upon the
Common Stock but only when and as determined by the Board of
Directors.
(B) In the event of any liquidation, dissolution or winding up of
the Corporation or any other proceedings resulting in any
distribution of all its assets to its stockholders, after there
shall 236
have been paid to or set apart for holders of all stock having
priority over the Common Stock the full preferential amounts to
which they are respectively entitled, the holders of the Common
Stock shall be entitled to receive pro rata all of the remaining
assets of the Corporation available for distribution to its
stockholders. The Board of Directors, by vote of a majority of the
members thereof, may distribute in kind to the holders of the
Common Stock such remaining assets of the Corporation, or may sell,
transfer or otherwise dispose of all of the remaining property or
assets of the Corporation to any other corporation and receive
payment therefor wholly or partly in cash or in stock or in
obligations of such corporation, and may sell all or any of the
consideration received therefor and distribute the balance thereof
in kind to the holders of the Common Stock.
(C) At all meetings of the stockholders of the Corporation the
holders of the Common Stock shall be entitled to one vote for each
share of such Common Stock held by them respectively.
FIFTH: The office of the Corporation is to be located in The City
of Syracuse, County of Onondaga, and State of New York.
SIXTH: The duration of the Corporation is to be perpetual.
SEVENTH: The number of Directors, none of whom need be
stockholders
of the Corporation, shall be not less than seven (7) nor more than
twenty-one (21).
EIGHTH: The names and post-office addresses of the persons who are
to be Directors of the new Corporation until the first annual
meeting of its stockholders are:
Frank C. Ash, Oswego Falls Corporation, Fulton, New York.
Myron G. Bronner, 404 Burrell Building, Little Falls, New York.
Samuel H. Cook, Fayetteville Road, Syracuse, New York.
John M. Costello, 300 Erie Boulevard West, Syracuse, New York.
James C. DeLong, 407 Stolp Avenue, Syracuse, New York.
A. Dean Dudley, 300 Erie Boulevard, West, Syracuse, New York.
Alan C. Fobes, Gurney Building, Syracuse, New York.
237
G. Harry Garrison, Cortland, New York.
John L. Haley, 300 Erie Boulevard, West, Syracuse, New York.
Alexander F. Hobbs, New York Mills, New York.
Harry S. Lewis, Beaver Falls, New York.
Thomas N. McCarter, Jr, 58 Public Square, Watertown, New York.
Leland D. McCormac, 258 Genesee Street, Utica, New York.
H. Edmund Machold, Ellisburg, New York.
Crandall Melvin, First Trust and Deposit Building, Syracuse, New
York.
Stephaan Piek, 300 Erie Boulevard, West, Syracuse, New York.
Ray W. Porter, 70 East First Street, Oswego, New York.
Alfred H. Schoellkopf, 15 Broad Street, New York, New York.
Morris Tracy, 300 Erie Boulevard, West, Syracuse, New York.
Walter F. Willson, Massena, New York.
Edward Wright, Potsdam, New York.
NINTH: The terms and conditions of the consolidation, the mode of
carrying the same into effect, and the manner of converting the
shares of each of the constituent corporations into shares of the
consolidated Corporation, are as follows:
A.
Each of the constituent corporations is an electric corporation or
a
gas corporation or a gas and electric corporation engaged in
rendering electric or gas service, or both, to the public within
the State of New York, and subject to the jurisdiction of the
Public Service Commission as provided by law.
B.
Upon the filing of this Certificate of Consolidation in the
Department of State of the State of New York, the outstanding
shares of the Capital Stock of each of the constituent corporations
shall be converted into shares of the consolidated corporation, as
follows:
(A) Each holder of shares of First Preferred Stock of Northern New
York Utilities Inc. outstanding when this Certificate of 238
Consolidation is filed in the Department of State shall be and
become the holder of 1 1/10 shares of the Preferred Stock, 5%
Series of the New Corporation for each share of First Preferred
Stock of Northern New York Utilities Inc. so held.
(B) Each holder of shares of 8% Preferred Stock of The Syracuse
Lighting Company Inc. outstanding when this Certificate of
Consolidation is filed in the Department of State shall be and
become the holder of 1 1/5 shares of the Preferred Stock, 5% Series
of the New Corporation for each share of 8% Preferred Stock of The
Syracuse Lighting Company Inc. so held.
(C) Each holder of shares of 6 1/2% Preferred Stock of The
Syracuse Lighting Company Inc. outstanding when this Certificate
ofConsolidation is filed in the Department of State shall be and
become the holder of 1 1/10 shares of the Preferred Stock, 5%
Series of the New Corporation for each share of 6 1/2% Preferred
Stock of The Syracuse Lighting Company Inc. so held.
(D) Each holder of shares of 6% Preferred Stock of The Syracuse
Lighting Company Inc. outstanding when this Certificate of
Consolidation is filed in the Department of State shall be and
become the holder of 1 1/20 shares of the Preferred Stock, 5%
Series of the New Corporation for each share of 6% Preferred Stock
of The Syracuse
Lighting Company Inc. so held.
(E) Each holder of shares of 7% Preferred Stock of Utica Gas and
Electric Company outstanding when this Certificate of Consolidation
is filed in the Department of State shall be and become the holder
of 1 1/20 shares of the Preferred Stock, 5% Series of the New
Corporation for each share of 7% Preferred Stock of Utica Gas and
Electric Company so held.
(F) Each holder of shares of $6 Preferred Stock of Utica Gas and
Electric Company outstanding when this Certificate of Consolidation
is filed in the Department of State shall be and become the holder
of 1 1/20 shares of the Preferred Stock, 5% Series of the New
Corporation for each share of $6 Preferred Stock of Utica Gas and
Electric Company so held.
239
(G) Each holder of shares of Preferred Stock of Malone Light and
Power Company outstanding when this Certificate of Consolidation is
filed in the Department of State shall be and become the holder of
four (4) shares of the Common Stock of the New Corporation for each
share of Preferred Stock of Malone Light and Power Company so held.
(H) Each holder of shares of Preferred Stock of Peoples Gas and
Electric Company of Oswego outstanding when this Certificate of
Consolidation is filed in the Department of State shall be and
become the holder of four (4) shares of the Common Stock of the New
Corporation for each share of Preferred Stock of Peoples Gas and
Electric Company of Oswego so held.
(I) Each holder of shares of Common Stock of Antwerp Light and
Power Company outstanding when this Certificate of Consolidation is
filed in the Department of State shall be and become the holder of
12 167/430 shares of Common Stock of the New Corporation for each
share of Common Stock of Antwerp Light and Power Company so held.
(J) Each holder of shares of Common Stock of Baldwinsville Light
and Heat Company of Baldwinsville, N. Y. outstanding when this
Certificate of Consolidation is filed in the Department of State
shall be and become the holder of 902/1000 of one (1) share of
Common Stock of the New Corporation for each share of Common Stock
of Baldwinsville Light and Heat Company of Baldwinsville, N. Y. so
held.
(K) Each holder of shares of Common Stock of Fulton Fuel and Light
Company outstanding when this Certificate of Consolidation is filed
in the Department of State shall be and become the holder of 1
1945/2500 shares of Common Stock of the New Corporation for each
share of Common Stock of Fulton Fuel and Light Company so held.
(L) Each holder of shares of Common Stock of Fulton Light, Heat
and Power Company outstanding when this Certificate of
Consolidation is filed in the Department of State shall be and
become the holder of 1 260/1800 shares of Common Stock of the New
Corporation for each share of Common Stock of Fulton Light, Heat
and Power Company so held.
240
(M) Each holder of shares of Common Stock of Malone Light and
Power Company outstanding when this Certificate of Consolidation is
filed in the Department of State shall be and become the holder of
25537/30741 of one (1) share of the Common Stock of the New
Corporation for each share of Common Stock of Malone Light and
Power Company so held.
(N) Each holder of shares of Common Stock of Northern New York
Utilities Inc. outstanding when this Certificate of Consolidation
is filed in the Department of State shall be and become the holder
of 191701/200000 of one (1) share of Common Stock of the New
Corporation for each share of Common Stock of Northern New York
Utilities Inc. so held.
(O) Each holder of shares of Common Stock of The Norwood Electric
Light and Power Company outstanding when this Certificate of
Consolidation is filed in the Department of State shall be and
become the holder of 8 461/671 shares of Common Stock of the New
Corporation for each share of Common Stock of The Norwood Electric
Light and Power Company so held.
(P) Each holder of shares of Common Stock of Peoples Gas and
Electric Company of Oswego outstanding when this Certificate of
Consolidation is filed in the Department of State shall be and
become the holder of 45650/46941 of one (1) share of Common Stock
of the New Corporation for each share of Common Stock of Peoples
Gas and Electric Company of Oswego so held.
(Q) Each holder of shares of Common Stock of St. Lawrence County
Utilities, Inc. outstanding when this Certificate of Consolidation
is filed in the Department of State shall be and become the holder
of 3 16331/37586 shares of Common Stock of the New Corporation for
each share of Common Stock of St. Lawrence County Utilities, Inc.
so held.
(R) Each holder of shares of Common Stock of St. Lawrence Valley
Power Corporation outstanding when this Certificate of
Consolidation is filed in the Department of State shall be and
become the holder of 3 31071/110772 shares of Common Stock of the
New Corporation for each 241
share of Common Stock of St. Lawrence Valley Power Corporation so
held.
(S) Each holder of shares of Common Stock of The Syracuse Lighting
Company Inc. outstanding when this Certificate of Consolidation is
filed in the Department of State shall be and become the holder of
239322/1069224 of one (1) share of Common Stock of the New
Corporation for each share of Common Stock of The Syracuse Lighting
Company Inc. so held.
(T) Each holder of shares of Common Stock of Utica Gas and
Electric Company outstanding when this Certificate of Consolidation
is filed in the Department of State shall be and become the holder
of 204395/400000 of one (1) share of Common Stock of the New
Corporation for each share of Common Stock of Utica Gas and
Electric Company so held.
(U) Upon the surrender for cancellation by such respective
holders, at such office or offices or such agency or agencies of
the New Corporation as may be designated by the Board of Directors
for that purpose, of the certificates representing shares of the
Capital Stock of the constituent corporations so held, duly
endorsed in blank for
transfer if required, such respective holders shall receive a
certificate or certificates representing the share or shares of
Capital Stock of the New Corporation to which each such holder is
entitled as aforesaid, except with respect to fractions of shares.
(V) Certificates for fractional shares of Preferred Stock, 5%
Series of the New Corporation will not be issued, but if, after
consolidating all fractions of shares of Preferred Stock, 5% Series
of the New Corporation to which a stockholder is entitled, such
stockholder is entitled to a fraction of one (1) full share of
Preferred Stock, 5% Series of the New Corporation, such holder
shall receive scrip evidencing, upon such terms and with such
provisions as may be determined by the Board of Directors of the
New Corporation, rights in respect of such fraction of one (1) full
share of such stock.
242
Fractional shares of Common Stock of the New Corporation will not
be issued, but if, after consolidating all fractions of shares of
such Common Stock to which a stockholder is entitled, such
stockholder is entitled to a fraction greater than one-half of one
full share but less than one full share of Common Stock of the New
Corporation, a full share of Common Stock of the New Corporation
will be issued therefor.
(W) After the filing of this Certificate of Consolidation in the
Department of State, there shall be no further issue or transfer of
certificates representing shares of stock of the constituent
corporations; and from time to time as such certificates are
presented at such office or offices or such agency or agencies as
the Board of Directors of the New Corporation shall designate for
that purpose, such certificates representing shares of stock of the
constituent corporations shall be cancelled and certificates of
stock of the New Corporation shall be issued as hereinbefore
provided in respect of the shares of stock of the constituent
corporations so presented; and the holders of shares of stock of
the constituent corporations shall, upon and after the filing of
this Certificate of Consolidation as aforesaid, be holders of the
shares of stock of the New Corporation to which they are
respectively entitled pursuant to
the terms and conditions of this consolidation, the mode of
carrying the same into effect and the manner of converting the
shares of each of the constituent corporations into shares of the
consolidated Corporation, hereinbefore provided.
C.
(1) The Board of Directors shall have power from time to time to
fix and determine and to vary the amount to be reserved as working
capital of the Corporation and, before the payment of any dividends
or making any distribution of profits, it may set aside out of the
surplus or net profits of the Corporation such sum or sums as it
may from time to time in its absolute discretion think proper
whether as a reserve fund to meet contingencies or for the
equalizing of dividends or for repairing or maintaining any
property of the Corporation or for such corporate purposes as the
Board shall think 243
conducive to the interests of the Corporation, subject only to such
limitations as the By-Laws of the Corporation may from time to time
impose.
(2) No contract or other transaction between this Corporation and
any other corporation shall be void or voidable because of the fact
that directors of this Corporation are directors of such other
corporation, if such contract or transaction shall be approved or
ratified by the affirmative vote of a majority of the directors
present at a meeting of the Board of Directors or the committee of
this Corporation having authority in the premises who are not so
interested. Any director individually, or any firm of which any
director is a partner, may be a party to or may be interested in
any contract or transaction of this Corporation provided that such
contract or transaction shall be approved or ratified by the
affirmative vote of at least a majority of the directors present at
a meeting of the Board of Directors or the Committee of the
Corporation having authority in the premises who are not so
interested. No director shall be liable to account to the
Corporation for any profit realized by him from or through any such
transaction or contract of the Corporation, ratified or approved as
aforesaid, by reason of his interest in such transaction or
contract.
Directors so interested may be counted when present at meetings of
the Board of Directors or of such committee for the purpose of
determining the existence of a quorum. Any director whose interest
in any such contract or transaction arises solely by reason of the
fact that he is a stockholder, officer or creditor of such other
company (or solely by reason of the fact that he is a director of
such other company or partner in such firm where such dealing,
contract or arrangement is made by officers or employees of the
Corporation in the ordinary performance of their duties and without
the actual participation of such director) shall not be deemed
interested in such contract or other transaction under any of the
provisions of this subdivision (2), nor shall any such contract or
transaction be void or voidable, nor shall any such director be
liable to account because of such interest.
244
No contract or other transaction between this Corporation and any
other corporation, at least a majority of the stock of which having
voting power is owned or controlled by the Corporation, or which
owns or controls at least a majority of the stock having voting
power of the Corporation, or which is affiliated with this
Corporation through and by reason of common control of such
corporation and this Corporation by another corporation or
corporations, shall in any case be void or voidable because of the
fact that directors of this Corporation are directors of such other
corporation, nor shall any such director be deemed interested in
such contract or other transaction under any of the provisions of
this subdivision (2), nor shall any such director be liable to
account because of such interest.
No contract or other transaction between this Corporation and any
other corporation or firm which provides for the purchase or sale
of securities or other property or for any other action by this
Corporation upon terms not less favorable to this Corporation than
those offered to others, shall in any case be void or voidable
because of the fact that directors of this Corporation are
directors of such other corporation or partners in such firm, nor
shall any director be deemed interested in such contract or other
transactions under any of the provisions of this subdivision (2),
nor shall any
such director be liable to account because of such interest.
Any contract or act that shall be approved or ratified by the vote
of the holders of a majority of the capital stock of the
Corporation having voting powers which is represented in person or
by proxy at any annual meeting of stockholders or at any special
meeting called for the purpose, among others, of considering the
approval or ratification of the acts of officers or directors
(provided that a lawful quorum of stockholders be there represented
in person or by proxy) shall be as valid and as binding upon the
Corporation and upon all its stockholders as though it had been
approved or ratified by every stockholder of the Corporation.
(3) Subject to the By-Laws, if any, adopted by the stockholders,
the Board of Directors shall also have power without the assent or
vote 245
of the stockholders to make, alter, amend and repeal the By-Laws of
the Corporation; to fix the times for the declaration and (except
in the case of the Preferred Stock, 5% Series) payment of
dividends; and to make and determine the use and disposition of any
surplus or net profits over and above the capital of the
Corporation.
(4) Subject to direction by resolution of the holders of a
majority of the stock the Board of Directors shall have power from
time to time to determine whether and to what extent and at what
times and places and under what conditions and regulations the
accounts and books of the Corporation (other than the stock book)
or any of them, shall be open to the inspection of stockholders;
and no stockholder shall have any right to inspect any account or
book or document of the Corporation except as conferred by statute
or authorized by the directors or by a resolution of the
stockholders.
(5) The Board of Directors shall have the power to appoint an
Executive Committee from among their number, which Committee, to
the extent and in the manner provided in the By-Laws of the
Corporation, shall have and may exercise all of the powers of the
Board of Directors, so far as may be permitted by law, in the
management of the business and affairs of the Corporation whenever
the Board of Directors is not in session. The fact that the
Executive Committee
has acted shall be conclusive evidence that the Board of Directors
was not in session at the time of such action.
(6) The Board of Directors, in addition to the powers and
authority expressly conferred upon it hereinbefore and by statute
and by the By-Laws, is hereby empowered to exercise all such powers
as may be exercised by the Corporation; subject, nevertheless, to
the provisions of the statutes of the State of New York, of the
Certificate of Consolidation and to any regulations that may from
time to time be made by the stockholders, provided that no
regulation so made shall invalidate any provision of the
Certificate of Consolidation or any prior act of the directors
which would have continued valid if such regulation had not been
made.
(7) The present By-Laws of Northern New York Utilities Inc.
246
(constituent corporation) shall be the By-Laws of the Corporation
except as modified by the provisions hereof and except as such By-
Laws from time to time may be amended or added to as provided
herein, therein or by law.
(8) The Corporation reserves the right to increase or decrease its
authorized capital stock, or any class or series thereof, or to
reclassify the same, and to amend, alter, change or repeal any
provision contained in the Certificate of Consolidation under which
the Corporation is organized or in any amendment thereto, in the
manner now or hereafter prescribed by law, and all rights conferred
upon stockholders in said Certificate of Consolidation or any
amendment thereto are granted subject to this reservation.
(9) Otherwise than as is specifically provided in this Article
NINTH in respect of the manner of converting the shares of each of
the constituent corporations into shares of the consolidated
Corporation, no stockholder shall be entitled as a matter of right
to subscribe for, purchase or receive any shares of the stock or
any rights or options of the Corporation which it may issue or
sell, whether out of the number of shares authorized by this
Certificate of Consolidation or by amendment thereof or other
proceedings or out of the shares of the stock of the Corporation
acquired by it after the issuance
thereof, nor shall any stockholder in any case be entitled as a
matter of right to purchase or subscribe for or receive any bonds,
debentures or other obligations which the Corporation may issue or
sell that shall be convertible into or exchangeable for stock or to
which shall be attached or appertain any warrant or warrants or
other instrument or instruments that shall confer upon the holder
or owner of such obligation the right to subscribe for or purchase
from the Corporation any shares of its capital stock. But all such
additional issues of stock, rights, options, or of bonds,
debentures or other obligations convertible into or exchangeable
for stock or to which warrants shall be attached or appertain or
which shall confer upon the holder the right to subscribe for or
purchase any shares of stock, may be issued and disposed of by the
Board of Directors to such persons, firms, associations and
corporations and upon such terms, subject to any provisions of law
in regard thereto, as in 247
their absolute discretion they may deem advisable.
(10) If it seems desirable or expedient so to do the Board of
Directors may from time to time issue scrip in lieu of fractions of
shares of stock or any rights in respect to fractions of shares of
stock upon such terms and with such provisions as may be determined
by the Board of Directors. Such scrip shall not confer upon the
holder thereof any right to dividends, except insofar as may be
specifically provided by the Board of Directors at the time of
issuance thereof or thereafter, or any voting or other rights as a
stockholder of the Corporation, but the Corporation shall from time
to time, if the Board of Directors so determines, issue one or more
whole shares of stock upon the surrender of scrip for fractions of
shares aggregating the number of whole shares issuable in respect
of the scrip so surrendered, provided that the scrip so surrendered
shall be properly endorsed for transfer if in registered form.
IN WITNESS WHEREOF, we have made and subscribed this Certificate
this 30th day of July, 1937.
THOMAS N. McCARTER JR.
President of
Antwerp Light and Power Company
ERNEST JOHNSTON
Secretary of
Antwerp Light and Power Company
RAY W. PORTER
President of
Baldwinsville Light and Heat Company
of Baldwinsville, N. Y.
ERNEST JOHNSTON
Secretary of
Baldwinsville Light and Heat Company
of Baldwinsville, N. Y.
248
RAY W. PORTER
President of
Fulton Fuel and Light Company
ERNEST JOHNSTON
Secretary of
Fulton Fuel and Light Company
RAY W. PORTER
President of
Fulton Light, Heat and Power Company
ERNEST JOHNSTON
Secretary of
Fulton Light, Heat and Power Company
EDWARD WRIGHT
President of
Malone Light and Power Company
ERNEST JOHNSTON
Secretary of
Malone Light and Power Company
H. EDMUND MACHOLD
President of
Northern New York Utilities Inc.
ERNEST JOHNSTON
Secretary of
Northern New York Utilities Inc.
EDWARD WRIGHT
President of
The Norwood Electric Light and Power
Company
249
ERNEST JOHNSTON
Secretary of
The Norwood Electric Light and Power
Company
RAY W. PORTER
President of
Peoples Gas and Electric Company
of Oswego
ERNEST JOHNSTON
Secretary of
Peoples Gas and Electric Company
of Oswego
EDWARD WRIGHT
President of
St. Lawrence County Utilities, Inc.
ERNEST JOHNSTON
Secretary of
St. Lawrence County Utilities, Inc.
EDWARD WRIGHT
President of
St. Lawrence Valley Power Corporation
ERNEST JOHNSTON
Secretary of
St. Lawrence Valley Power Corporation
A. DEAN DUDLEY
President of
The Syracuse Lighting Company Inc.
ERNEST JOHNSTON
Secretary of
The Syracuse Lighting Company Inc.
250
LELAND D. McCORMAC
Executive Vice-President of
Utica Gas and Electric Company
SARA HARRIS
Secretary of
Utica Gas and Electric Company
STATE OF NEW YORK, )
COUNTY OF JEFFERSON, ) ss.:
On this 30th day of July, 1937, before me personally came THOMAS N.
McCARTER, JR., and ERNEST JOHNSTON to me known to be two of the
persons described in and who executed the foregoing Certificate of
Consolidation; and they thereupon duly acknowledged to me that they
executed the same.
B. O. PINSONNEAULT
Notary Public.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA, ) ss.:
On this 30th day of July, 1937, before me personally came RAY W.
PORTER and ERNEST JOHNSTON to me known to be two of the persons
described in and who executed the foregoing Certificate of
Consolidation; and they thereupon duly acknowledged to me that they
executed the same.
CATHERINE E. AGAN
Notary Public.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA, ) ss.:
On this 30th day of July, 1937, before me personally came EDWARD
WRIGHT and ERNEST JOHNSTON to me known to be two of the persons
251
described in and who executed the foregoing Certificate of
Consolidation; and they thereupon duly acknowledged to me that they
executed the same.
CATHERINE E. AGAN
Notary Public.
STATE OF NEW YORK, )
COUNTY OF JEFFERSON, ) ss.:
On this 30th day of July, 1937, before me personally came H. EDMUND
MACHOLD and ERNEST JOHNSTON to me known to be two of the persons
described in and who executed the foregoing Certificate of
Consolidation; and they thereupon duly acknowledged to me that they
executed the same.
B. O. PINSONNEAULT
Notary Public.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA,) ss.:
On this 30th day of July, 1937, before me personally came A. DEAN
DUDLEY and ERNEST JOHNSTON to me known to be two of the persons
described in and who executed the foregoing Certificate of
Consolidation; and they thereupon duly acknowledged to me that they
executed the same.
CATHERINE E. AGAN
Notary Public.
STATE OF NEW YORK, )
COUNTY OF ONEIDA, ) ss.:
On this 30th day of July, 1937, before me personally came LELAND D.
McCORMAC and SARA HARRIS to me known to be two of the persons
described in and who executed the foregoing Certificate of
Consolidation; and they thereupon duly acknowledged to me that they
252
executed the same.
JOHN J. BOURKE
Notary Public.
[SEAL]
AFFIDAVIT OF OFFICERS OF ANTWERP LIGHT AND POWER COMPANY.
STATE OF NEW YORK, )
COUNTY OF JEFFERSON, ) ss.:
THOMAS N. McCARTER, JR., and ERNEST JOHNSTON, being duly sworn, do
depose and say, and each for himself deposes and says: That he,
THOMAS N. McCARTER, JR., is the President, and he, ERNEST JOHNSTON,
is the Secretary, of ANTWERP LIGHT AND POWER COMPANY, one of the
constituent companies named in the foregoing Certificate of
Consolidation; that they have been duly authorized to execute and
file the foregoing Certificate of Consolidation by votes cast in
person or by proxy of the holders of record of two-thirds of the
outstanding shares of ANTWERP LIGHT AND POWER COMPANY entitled to
vote thereon; and that such votes were cast at a stockholders'
meeting held on July 29, 1937, upon notice as prescribed in Section
45 of the Stock Corporation Law, to every stockholder of record of
the Corporation entitled to vote thereon, and to every stockholder
who by reason of said consolidation would be entitled to have his
stock appraised if such action were taken.
THOMAS N. McCARTER, JR.
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
B. O. PINSONNEAULT
253
Notary Public.
AFFIDAVIT OF OFFICERS OF BALDWINSVILLE LIGHT AND HEAT COMPANY
OF BALDWINSVILLE, N. Y.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA,) ss.:
RAY W. PORTER and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, RAY W. PORTER,
is the President, and he, ERNEST JOHNSTON, is the Secretary, of
BALDWINSVILLE LIGHT AND HEAT COMPANY OF BALDWINSVILLE, N. Y., one
of the constituent companies named in the foregoing Certificate of
Consolidation; that they have been duly authorized to execute and
file the foregoing Certificate of Consolidation by votes cast in
person or by proxy of the holders of record of two-thirds of the
outstanding shares of BALDWINSVILLE LIGHT AND HEAT COMPANY OF
BALDWINSVILLE, N. Y. entitled to vote thereon; and that such votes
were cast at a stockholders' meeting held on July 29, 1937, upon
notice as prescribed in Section 45 of the Stock Corporation Law, to
every Stockholder of record of the Corporation entitled to vote
thereon, and to every stockholder who by reason of said
consolidation would be entitled to have his stock appraised if such
action were
taken.
RAY W. PORTER
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF FULTON FUEL AND LIGHT COMPANY.
STATE OF NEW YORK, )
254
COUNTY OF ONONDAGA, ) ss.:
RAY W. PORTER and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, RAY W. PORTER,
is the President, and he, ERNEST JOHNSTON, is the Secretary, of
FULTON FUEL AND LIGHT COMPANY, one of the constituent companies
named in the foregoing Certificate of Consolidation; that they have
been duly authorized to execute and file the foregoing Certificate
of Consolidation by votes cast in person or by proxy of the holders
of two-thirds of the outstanding shares of FULTON FUEL AND LIGHT
COMPANY entitled to vote thereon; and that such votes were cast at
a stockholders' meeting held on July 29, 1937, upon notice as
prescribed by Section 45 of the Stock Corporation Law, to every
stockholder of record of the Corporation entitled to vote thereon,
and to every stockholder who by reason of said consolidation would
be entitled to have his stock appraised if such action were taken.
RAY W. PORTER
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF FULTON LIGHT, HEAT AND POWER COMPANY.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA,) ss.:
RAY W. PORTER and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, Ray W. Porter,
is the President, and he, Ernest Johnston, is the Secretary, of
FULTON LIGHT, HEAT AND POWER COMPANY, one of the constituent
companies named in the foregoing Certificate of Consolidation; that
they have been duly authorized to execute and file the foregoing
255
Certificate of Consolidation by votes cast in person or by proxy of
the holders of record of two-thirds of the outstanding shares of
FULTON LIGHT, HEAT AND POWER COMPANY entitled to vote thereon; and
that such votes were cast at a stockholders' meeting held on July
29, 1937, upon notice as prescribed in Section 45 of the Stock
Corporation Law, to every stockholder of record of the Corporation
entitled to vote thereon, and to every stockholder who by reason of
said consolidation would be entitled to have his stock appraised if
such action were taken.
RAY W. PORTER
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAIN
Notary Public.
AFFIDAVIT OF OFFICERS OF MALONE LIGHT AND POWER COMPANY.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA, ) ss.:
EDWARD WRIGHT and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, Edward Wright,
is the President, and he, Ernest Johnston, is the Secretary, of
MALONE LIGHT AND POWER COMPANY, one of the constituent companies
named in the foregoing Certificate of Consolidation; that they have
been duly authorized to execute and file the foregoing Certificate
of Consolidation by votes cast in person or by proxy of the holders
of record of two-thirds of the outstanding shares of MALONE LIGHT
AND POWER COMPANY entitled to vote thereon; and that such votes
were cast at a stockholders' meeting held on July 29, 1937, upon
notice as prescribed in Section 45 of the Stock Corporation Law, to
every stockholder of record of the Corporation entitled to vote
thereon, and to every stockholder who by reason of said
consolidation would be 256
entitled to have his stock appraised if such action were taken.
EDWARD WRIGHT
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF NORTHERN NEW YORK UTILITIES INC.
STATE OF NEW YORK, )
COUNTY OF JEFFERSON, ) ss.:
H. EDMUND MACHOLD and ERNEST JOHNSTON, being duly sworn, do depose
and say, and each for himself deposes and says: That he, H. EDMUND
MACHOLD, is the President, and he, ERNEST JOHNSTON, is the
Secretary, of NORTHERN NEW YORK UTILITIES INC., one of the
constituent companies named in the foregoing Certificate of
Consolidation; that they have been duly authorized to execute and
file the foregoing Certificate of Consolidation by votes cast in
person or by proxy of the holders of record of two-thirds of the
outstanding shares of NORTHERN NEW YORK UTILITIES INC. entitled to
vote thereon; and that such votes were
cast at a stockholders' meeting held on July 30, 1937 upon notice
as prescribed in Section 45 of the Stock Corporation Law, to every
stockholder of record of the Corporation entitled to vote thereon,
and to every stockholder who by reason of said consolidation would
be entitled to have his stock appraised if such action were taken.
H. EDMUND MACHOLD
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
257
B. O. PINSONNEAULT
Notary Public.
AFFIDAVIT OF OFFICERS OF THE NORWOOD ELECTRIC LIGHT AND
POWER COMPANY.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA,) ss.:
EDWARD WRIGHT and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, EDWARD WRIGHT,
is the President, and he, ERNEST JOHNSTON, is the Secretary, of THE
NORWOOD ELECTRIC LIGHT AND POWER COMPANY, one of the constituent
companies named in the foregoing Certificate of Consolidation; that
they have been duly authorized to execute and file the foregoing
Certificate of Consolidation by votes cast in person or by proxy of
the holders of record of two-thirds of the outstanding shares of
THE NORWOOD ELECTRIC LIGHT AND POWER COMPANY entitled to vote
thereon; and that such votes were cast at a stockholders' meeting
held on July 29, 1937, upon notice as prescribed in Section 45 of
the Stock Corporation Law, to every stockholder of record of the
Corporation entitled to vote thereon, and to every stockholder who
by reason of said consolidation would be entitled to have his stock
appraised if such action were taken.
EDWARD WRIGHT
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF PEOPLES GAS AND ELECTRIC COMPANY
OF OSWEGO
258
STATE OF NEW YORK, )
COUNTY OF ONONDAGA,) ss.:
RAY W. PORTER and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, RAY W. PORTER,
is the President, and he, ERNEST JOHNSTON, is the Secretary, of
PEOPLES GAS AND ELECTRIC COMPANY OF OSWEGO, one of the constituent
companies named in the foregoing Certificate of Consolidation; that
they have been duly authorized to execute and file the foregoing
Certificate of Consolidation by votes cast in person or by proxy of
the holders of record of two-thirds of the outstanding shares of
PEOPLES GAS AND ELECTRIC COMPANY OF OSWEGO entitled to vote
thereon; and that such votes were cast at a stockholders' meeting
held on July 29, 1937, upon notice as prescribed in Section 45 of
the Stock Corporation Law, to every stockholder of record of the
Corporation entitled to vote thereon, and to every stockholder who
by reason of said consolidation would be entitled to have his stock
appraised if such action were taken.
RAY W. PORTER
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF
ST. LAWRENCE COUNTY UTILITIES, INC.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA, ) ss.:
EDWARD WRIGHT and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, EDWARD WRIGHT,
is the President, and he, ERNEST JOHNSTON, is the Secretary, of ST.
259
LAWRENCE COUNTY UTILITIES, INC., one of the constituent companies
named in the foregoing Certificate of Consolidation; that they have
been duly authorized to execute and file the foregoing Certificate
of Consolidation by votes cast in person or by proxy of the holders
of record of two-thirds of the outstanding shares of ST. LAWRENCE
COUNTY UTILITIES, INC., entitled to vote thereon; and that such
votes were cast at a stockholders' meeting held on July 29, 1937,
upon notice as prescribed in Section 45 of the Stock Corporation
Law, to every stockholder of record of the Corporation entitled to
vote thereon, and to every stockholder who by reason of said
consolidation would be entitled to have his stock appraised if such
action were taken.
EDWARD WRIGHT
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF
ST. LAWRENCE VALLEY POWER CORPORATION.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA,) ss.:
EDWARD WRIGHT and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, EDWARD WRIGHT,
is the President, and he, ERNEST JOHNSTON, is the Secretary, of ST.
LAWRENCE VALLEY POWER CORPORATION, one of the constituent companies
named in the foregoing Certificate of Consolidation; that they have
been duly authorized to execute and file the foregoing Certificate
of Consolidation by votes cast in person or by proxy of the holders
of record of two-thirds of the outstanding shares of ST. LAWRENCE
VALLEY POWER CORPORATION entitled to vote thereon; and that such
votes were cast at a stockholders' meeting held upon notice as
prescribed in Section 45 of the Stock Corporation Law, to every
stockholder of 260
record of the Corporation entitled to vote thereon, and to every
stockholder who by reason of said consolidation would be entitled
to have his stock appraised if such action were taken, such meeting
having been held on July 29, 1937 and duly adjourned and reconvened
on July 30, 1937, on which day such votes were cast.
EDWARD WRIGHT
ERNEST JOHNSTON
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF THE SYRACUSE LIGHTING COMPANY INC.
STATE OF NEW YORK, )
COUNTY OF ONONDAGA,) ss.:
A. DEAN DUDLEY and ERNEST JOHNSTON, being duly sworn, do depose and
say, and each for himself deposes and says: That he, A. DEAN
DUDLEY, is the President, and he, ERNEST J. JOHNSTON, is the
Secretary, of THE SYRACUSE LIGHTING COMPANY INC., one of the
constituent companies named in the foregoing Certificate of
Consolidation; that they have been duly authorized to execute and
file the foregoing Certificate of Consolidation by votes cast in
person or by proxy of the holders of record of two-thirds of the
outstanding shares of THE SYRACUSE LIGHTING COMPANY INC. entitled
to vote thereon; and that such votes
were cast at a stockholders' meeting held on July 30, 1937, upon
notice as prescribed in Section 45 of the Stock Corporation Law, to
every stockholder of record of the Corporation entitled to vote
thereon, and to every stockholder who by reason of said
consolidation would be entitled to have his stock appraised if such
action were taken.
A. DEAN DUDLEY
ERNEST JOHNSTON
261
Subscribed and sworn to before
me this 30th day of July, 1937.
CATHERINE E. AGAN
Notary Public.
AFFIDAVIT OF OFFICERS OF UTICA GAS AND
ELECTRIC COMPANY
STATE OF NEW YORK, )
COUNTY OF ONEIDA, ) ss.:
LELAND D. McCORMAC and SARA HARRIS, being duly sworn, do depose and
say, and each for himself deposes and says: That he, LELAND D.
McCORMAC, is the Executive Vice-President, and she, SARA HARRIS, is
the Secretary, of UTICA GAS AND ELECTRIC COMPANY, one of the
constituent companies named in the foregoing Certificate of
Consolidation; that they have been duly authorized to execute and
file the foregoing Certificate of Consolidation by votes cast in
person or by proxy of the holders of record of two-thirds of the
outstanding shares of UTICA GAS AND ELECTRIC COMPANY entitled to
vote thereon; and that such votes were cast at a stockholders'
meeting held on July 29, 1937, upon notice as prescribed in Section
45 of the Stock Corporation Law, to every stockholder of record of
the Corporation entitled to vote thereon, and to every stockholder
who by reason of said consolidation would be entitled to have his
stock appraised if such action were taken.
LELAND D. McCORMAC
SARA HARRIS
Subscribed and sworn to before
me this 30th day of July, 1937.
JOHN J. BOURKE
Notary Public.
262
[SEAL]
STATE OF NEW YORK,
DEPARTMENT OF PUBLIC SERVICE,
STATE DIVISION.
Albany, New York, July 31, 1937.
____________________________________________________
IN THE MATTER
of the
Petition of ANTWERP LIGHT AND POWER COMPANY,
BALDWINSVILLE LIGHT AND HEAT COMPANY OF
BALDWINSVILLE, N. Y., FULTON FUEL AND LIGHT
COMPANY, FULTON LIGHT, HEAT AND POWER
COMPANY, MALONE LIGHT AND POWER COMPANY,
NEW YORK POWER AND LIGHT CORPORATION,
NORTHERN NEW YORK UTILITIES, INC., OLD
FORGE ELECTRIC CORPORATION, PEOPLES
GAS AND ELECTRIC COMPANY OF OSWEGO,
ST. LAWRENCE COUNTY UTILITIES, INC.,
ST. LAWRENCE VALLEY POWER CORPORATION, Case No. 9105
THE NORWOOD ELECTRIC LIGHT AND POWER
COMPANY, THE SYRACUSE LIGHTING
COMPANY INC., and UTICA GAS AND
ELECTRIC COMPANY for approval and
consent to the consolidation of the
said companies and to the issuance
of capital stock by the Consolidated
Corporation; and the petition of
NIAGARA HUDSON POWER CORPORATION for
approval and consent to the acquisition
and holding by said corporation of the
voting capital stock of the Consolidated
Corporation.
Supplemental petition eliminating NEW YORK
263
POWER AND LIGHT CORPORATION and asking
authority to issue certain mortgage
bonds.
Second supplemental petition eliminating
OLD FORGE ELECTRIC CORPORATION.
_________________________________________________________
The Public Service Commission of the State of New York (State
Division, Department of Public Service) hereby approves the
consolidation of Antwerp Light and Power Company, Baldwinsville
Light and Heat Company of Baldwinsville, N. Y., Fulton Fuel and
Light Company, Fulton Light, Heat and Power Company, Malone Light
and Power Company, Northern New York Utilities Inc., Peoples Gas
and Electric Company of Oswego, St. Lawrence County Utilities,
Inc., St. Lawrence Valley Power Corporation, The Norwood Electric
Light and Power Company, The Syracuse Lighting Company Inc. and
Utica Gas and Electric Company into Niagara Hudson Public Service
Corporation, which consolidation is evidenced by the Certificate of
Consolidation executed by the President and Secretary of Antwerp
Light and Power Company, the President and Secretary of
Baldwinsville Light and Heat Company of Baldwinsville, N. Y.,
Fulton Fuel and Light Company, Fulton Light, Heat and Power Company
and Peoples Gas and Electric Company of Oswego, the President and
Secretary of Malone Light and Power Company, The Norwood Electric
Light and Power Company, St. Lawrence County Utilities, Inc., and
St. Lawrence Valley Power Corporation, the Executive Vice-President
and Secretary of Utica Gas and Electric Company, the President and
Secretary of The Syracuse
Lighting Company Inc. and the President and Secretary of Northern
New York Utilities Inc., on July 30, 1937, all in accordance with
the order of the Public Service Commission of the State of New
York, dated June 16, 1937, in P. S. C. Case No. 9105.
By the Commission,
FRANCIS E. ROBERTS,
Secretary
264
[SEAL]
STATE OF NEW YORK )
DEPARTMENT OF STATE ) ss.:
IT IS HEREBY CERTIFIED, THAT I have compared the preceding copy
with the original Certificate of Consolidation of
ANTWERP LIGHT AND POWER COMPANY
BALDWINSVILLE LIGHT AND HEAT COMPANY OF BALDWINSVILLE, N. Y.
FULTON FUEL AND LIGHT COMPANY,
FULTON LIGHT, HEAT AND POWER COMPANY,
MALONE LIGHT AND POWER COMPANY,
NORTHERN NEW YORK UTILITIES INC.,
THE NORWOOD ELECTRIC LIGHT AND POWER COMPANY,
PEOPLES GAS AND ELECTRIC COMPANY OF OSWEGO,
ST. LAWRENCE COUNTY UTILITIES, INC.,
ST. LAWRENCE VALLEY POWER CORPORATION,
THE SYRACUSE LIGHTING COMPANY INC., and
UTICA GAS AND ELECTRIC COMPANY
FORMING
NIAGARA HUDSON PUBLIC SERVICE CORPORATION,
with the various certificates and affidavits thereto annexed, filed
in this department on the 31st day of July, 1937, and that such
copy is a correct transcript therefrom and of the whole of such
original.
265
WITNESS my hand and the official seal of the DEPARTMENT OF STATE at
the City of Albany, this second day of August, one thousand nine
hundred and thirty-seven.
FRANK S. SHARP
Deputy Secretary of State
[SEAL]
STATE OF NEW YORK, )
COUNTY OF ONONDAGA, ) ss.:
I, ROLLAND A. STREVER, Clerk of said County, and of Supreme and
County Courts therein which are courts of Record, do hereby certify
that I have compared the foregoing copy of a Certificate with the
original thereof filed and recorded and now remaining on file of
record in this office and that the same is a correct transcript of
said original, and of the whole thereof, and of the endorsement
thereon.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
seal of said County and Courts at the City of Syracuse, this 17th
day of March, 1942.
A. STREVER
Clerk
37
EXHIBIT 11
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
---------------------------------------------------------
Computation of the Average Number of Shares of Common Stock Outstanding
For the Three Months Ended March 31, 1994 and 1993
(4)
Average
Number
of
Shares
Outstanding
As
(1) (2) (3) Shown
on
Consolidated
Shares of Number of Share Statement
of
Income
Common Days Days (3
divided
by
#
of
Stock Outstanding (2 x 1) Days
in
Period)
-------- ----------- ------- ---------------------
FOR THE THREE MONTHS
ENDED MARCH 31:
JANUARY 1 - MARCH 31, 1994 142,427,057 90 12,818,435,130
SHARES SOLD AT VARIOUS
TIMES DURING THE PERIOD -
DIVIDEND REINVESTMENT PLAN 179,301 *<F1> 5,691,034
EMPLOYEE SAVINGS FUND PLAN 100,000 *<F1> 700,000
----------- --------------
142,706,358 12,824,826,164 142,498,068
=========== ============== ===========
JANUARY 1 - MARCH 31, 1993 137,159,607 90 12,344,364,630
SHARES SOLD AT VARIOUS
TIMES DURING THE PERIOD -
DIVIDEND REINVESTMENT PLAN 135,699 *<F1> 4,291,118
PURCHASE- SYRACUSE SUBURBAN 593 *<F1> 51,591
----------- --------------
137,295,899 12,348,707,339 137,207,859
=========== ============== ===========
NOTE: Earningspershare calculatedonbothaprimaryandfully dilutedbasisarethesamedue
to
the effects of rounding.
<FN>
<F1> Numberofdaysoutstandingnotshown assharesrepresentanaccumulationofweekly and
monthlysalesthroughoutthequarter. Sharedaysforsharessoldarebased onthetotal
number of days each share was outstanding during the quarter.
38
EXHIBIT 12
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
---------------------------------------------------------
Statement Showing Computation of Ratio of Earnings to Fixed
Charges, Ratio of Earnings to Fixed Charges without AFC and Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends for
the Twelve Months Ended March 31, 1994 (in thousands of dollars)
A. Net income $ 283,339
B. Taxes Based on Income or Profits 155,233
----------
C. Earnings, Before Income Taxes 438,572
D. Fixed Charges (a) 318,729
----------
E. Earnings Before Income Taxes and
Fixed Charges 757,301
F. Allowance for Funds Used During
Construction (AFC) 14,235
----------
G. Earnings Before Income Taxes and
Fixed Charges without AFC $ 743,066
=========
PREFERRED DIVIDEND FACTOR:
H. Preferred Dividend Requirements $ 30,575
---------
I. Ratio of Pre-tax Income to Net
Income (C/A) 1.548
----------
J. Preferred Dividend Factor (HxI) $ 47,330
K. Fixed Charges as Above (D) 318,729
----------
L. Fixed Charges and Preferred Dividends
Combined $ 366,059
==========
M. Ratio of Earnings to Fixed
Charges (E/D) 2.38
==========
N. Ratio of Earnings to Fixed Charges
without AFC (G/D) 2.33
==========
O. Ratio of Earnings to Fixed Charges
and Preferred Dividends Combined (E/L) 2.07
==========
(a) Includes a portion of rentals deemed representative of the
interest factor ($27,995).
39
PRICE WATERHOUSE
ONE MONY PLAZA
SYRACUSE NY 13202
TELEPHONE 315-474-6571
EXHIBIT 15
----------
May 12, 1994
SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET NW
WASHINGTON DC 20549
Dear Sirs:
We are aware that Niagara Mohawk Power Corporation has included
our report dated May 12, 1994 (issued pursuant to the provisions
of Statement on Auditing Standards No. 71) in the Registration
Statements on Form S-8 (Nos. 33-36189, 33,42720, 33-42721 and 33-
42771) and in the Prospectus constituting part of the
Registration Statements on Form S-3 (Nos. 33-45898, 33-50703, 33-
51073, 33-55546 and 33-59594). We are also aware of our
responsibilities under the Securities Act of 1933.
Yours very truly,
/s/ Price Waterhouse
40