SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
/X/ Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the fiscal year ended December 31, 1994
OR
/ / Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the transition period
from ......to......
Commission file number 1-2987
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NIAGARA MOHAWK POWER CORPORATION
(Exact name of registrant as specified in its charter)
State of New York 15-0265555
(State or other jurisdiction of (IRS 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
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Securities registered pursuant to Section 12(b) of the Act:
(Each class is registered on the New York Stock Exchange)
Title of each class
Common Stock ($1 par value)
Preferred Stock ($100 par Preferred Stock ($25
par value-cumulative): par value - cumulative):
3.40% Series 4.10% Series 6.10% Series 9.50% Series
3.60% Series 4.85% Series 7.72% Series Adjustable Rate
3.90% Series 5.25% Series Series A & Series C
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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 by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of registrant's knowledge,
in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K / /
State the aggregate market value of the voting stock held by non-
affiliates of the registrant.
Approximately $2,109,000,000 at March 1, 1995.
Indicate the number of shares outstanding of each of the
registrant's classes of common stock, as of the latest
practicable date.
Common stock $1 par 144,330,482 shares outstanding March 1,
1995.
Documents incorporated by reference:
Definitive Proxy Statement in connection with annual meeting of
stockholders to be held May 2, 1995 incorporated in Part III
to the extent described therein.
NIAGARA MOHAWK POWER CORPORATION
INFORMATION REQUIRED IN FORM 10-K
PART I
ITEM NUMBER PAGE
Item 1. Business. 3
Item 2. Properties. 22
Item 3. Legal Proceedings. 25
Item 4. Submission of Matters to a Vote of
Security Holders. 27
Executive Officers of the Registrant 28
PART II
Item 5. Market for the Registrant's Common Equity and
Related Stockholder Matters. 29
Item 6. Selected Financial Data. 30
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations. 31
Item 8. Financial Statements and Supplementary Data. 53
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure. 93
PART III
Item 10. Directors, Executive Officers, Promoters and
Control Persons of the Registrant. 93
Item 11. Executive Compensation. 93
Item 12. Security Ownership of Certain Beneficial
Owners and Management. 93
Item 13. Certain Relationships and Related Transactions. 93
PART IV
Item 14. Exhibits, Financial Statement Schedules, and
Reports on Form 8-K. 93
Signatures 117
NIAGARA MOHAWK POWER CORPORATION
PART I
Item 1. BUSINESS.
The Company, organized in 1937 under the laws of New York,
is engaged principally in the business of production, purchase,
transmission, distribution and sale of electricity and the
purchase, distribution, sale and transportation of gas in New
York State. The Company provides electric service to the public
in an area of New York State having a total population of about
3,500,000, including, among others, the cities of Buffalo,
Syracuse, Albany, Utica, Schenectady, Niagara Falls, Watertown
and Troy. The Company distributes or transports natural gas in
areas of central, northern and eastern New York having a total
population of about 1,700,000, nearly all within the Company's
electric service area. A Canadian subsidiary owns an electric
company with operations in the Province of Ontario, Canada and a
wind power company with operations in the Province of Alberta,
Canada. A Texas subsidiary has an interest in a uranium mining
operation in Live Oak County, Texas which is now in the process
of reclamation and restoration. Another New York subsidiary
engages in real estate development. Each of these subsidiaries
is wholly-owned by the Company.
GENERAL. Until recently, the electric and gas utility
industry operated in a relatively stable business environment,
subject to traditional cost-of-service regulation. The
investment community, both shareholders and creditors, considered
utility securities to be of low risk and high quality.
Regulators tended to protect the utility monopoly in exchange for
the utility company providing universal service to customers in
its franchise area. Such protection often encouraged regulators
and other governmental bodies to use utilities as vehicles to
advance social programs and collect taxes. In general, utilities
and regulators were inclined toward establishing a fair rate of
return and away from particular price considerations or
incentives for aggressive, long-term cost control. Cash flows
were relatively predictable, as was the industry's ability to
sustain investment grade dividend payout and interest coverage
ratios.
The emergence of competition has begun to erode the utility
industry's monopoly position and the regulator's ability to
assure the industry's financial health. For example, the passage
of the National Energy Policy Act of 1992 (EPAct) is resulting in
a rapid increase in wholesale (a sale to another entity for
resale to an end user) competition. EPAct eases the way for non-
utility, unregulated generators to enter the marketplace and
allows the Federal Energy Regulatory Commission (FERC) to require
the utility owners of electricity transmission systems to
transport power for wholesale transactions. The speed and extent
of monopoly erosion will be dependent upon a number of company
specific characteristics, including geographic location and
electric system limitations, cost and price of services in
relation to neighboring utilities, opportunity for alternative
suppliers and fuels to compete, economic vitality of the service
territory, policies of regulators and legislators and electric
supply/demand balances.
The increasing movement towards a competitive environment
has required regulators on both the state and federal levels to
begin to address the many substantial issues confronting electric
utilities. During 1994, the FERC and the PSC each provided or
proposed guidelines to address different aspects of competition.
The FERC issued guidelines for pricing electric transmission
service and proposed guidelines for the recovery of stranded
costs. Meanwhile, the PSC, in Phase I of its generic competitive
proceeding, adopted guidelines to govern flexible rates which
could be offered by utilities to retain qualified customers.
Phase II of this proceeding will examine issues relating to the
establishment of wholesale and retail competitive markets.
Competition creates various pressures on the prices of
utility products and services. As the potential for broad based
competition grows, government mandated social programs,
burdensome tax structures and other regulatory initiatives become
cost elements that a market based pricing system will not be
likely to support. For the Company, the most significant of
these burdens is state mandated payments to unregulated
generators and excessive taxes such as the gross receipts tax and
property taxes. Due to these factors, the Company's electric
industrial rates have moved from being among the lowest in New
York State and the Northeast to above average.
The most important problem associated with rapidly
increasing competition in electricity markets is that it would
create transition costs. Transition costs are those utility
costs in excess of what could be earned in an open retail market.
They exist because of a series of commitments made by customers,
regulators, lawmakers and utilities that competition would make
difficult to keep unless specific provisions are made to account
for them. Commitments made under the current regulatory system
might become stranded if electricity markets were competitively
restructured and the resulting market prices were too low to
allow for recovery of the costs associated with those
obligations. Costs which might become stranded include sunk
investments, liabilities (primarily contracts with unregulated
generators), deferred costs and social programs. Estimates of
potential stranded investment exposure for the United States
electric utility industry as a whole range as high as $150 to
$200 billion, compared to a total shareholder equity of $180
billion.
Certain parties in New York State and certain governmental
officials have stated that the best way for the Company to
address competitive issues would be to take substantial, but
unspecified in amount, writedowns of its assets, particularly its
nuclear and fossil generating plants. The Company's position is
that any responsible solution to the problems posed by increasing
competition and deregulation must be substantially more
evenhanded, and will necessarily be more complicated, than any
such proposal. The Company will vigorously contest inequitable
solutions to competitive issues.
In response to these issues, the Company has made
significant progress in managing the costs under its direct
control. Since December 1992, the employee level has been
reduced by over 3,100, or 27%, to approximately 9,200 and will be
further reduced to about 8,750 during 1995. Capital spending has
also been reduced sharply in recent years, with electric
construction spending in future years expected to be limited to
the level of depreciation expense, thereby resulting in little
growth in traditional rate base. The Company remains focused on
materially reducing its total costs.
Since 1991, the Company has also reduced its expected
unregulated generator expense through contract buyouts and
project cancellations. As a result, the 1995 expenditures are
expected to be more than $200 million below what they would have
been had the Company not acted. However, the Company still faces
significant overpayment obligations to unregulated generators.
In the second half of 1994, the Company was faced with
unprecedented events that had a major impact on it. In August,
the New York State Public Service Commission (PSC) Staff proposed
an immediate overall decrease in electric revenues from 1994
levels of approximately $146 million. Then, in September, the
PSC authorized sales by Sithe Independence Power Partners, Inc.
(Sithe) of retail electricity directly to Alcan Rolled Products
(Alcan), a large customer of the Company. Financial markets
reacted negatively and the Company's common stock price fell. As
a result, the Company postponed a common stock offering that was
planned for the fourth quarter of 1994. See Item 5.
The Company has considered, and is continuing to consider,
various strategies designed to enhance its competitive position
and to increase its ability to adapt to and anticipate changes in
its utility business. These strategies may include business
combinations with other companies, acquisitions of related or
unrelated businesses, and additions to or disposition of portions
of its franchised service territories. Additionally, a number of
electric utilities have recently announced consideration of plans
to organize their operations so that generation and power supply
activities are conducted by an entity within the corporate group
separate from the entity which provides transmission and
distribution services to the utility's customers. The Company is
also studying such a division of its operations, in part because
of suggestions by New York governmental officials that power
supply should be separated from transmission and distribution
functions and in part as a means of dealing with issues related
to unregulated generator contracts.
For a more detailed discussion of the competitive
environment and the Company's efforts to address competition, see
Part II, Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations.
The following topics are discussed under the general heading
of "Business". Where applicable, the discussions make reference
to the various other items of this Form 10-K.
TOPIC PAGE
Regulation and Rates 5
Unregulated Generators 7
New York Power Authority 8
Purchased Power 9
Fuel for Electric Generation:
Coal 10
Natural Gas 10
Residual Oil 10
Nuclear 11
Gas Supply 12
Industry Segment Data 13
Environmental Matters 13
Nuclear Operations 17
Construction Program 19
Electric Supply Planning 19
Electric Delivery Planning 19
Demand-Side Management Programs 20
Research and Development 20
Employee Relations 21
Liability Insurance 21
REGULATION AND RATES. PRICE DISCOUNTS. Competition has
been increasing in the Company's wholesale and retail markets.
In the wholesale markets, the Company competes directly with
other U.S. utilities, Canadian utilities, the New York Power
Authority (NYPA), and unregulated generators. While it has
always competed with other utilities in wholesale markets, recent
events have increased competition. For example, the PSC has been
increasing the share of deviations from forecast fuel targets,
including sales for resale, that utilities must absorb. Thus,
utilities have larger financial incentives to achieve reduced
fuel costs and increased sales for resale, making wholesale
markets more competitive. In addition, a prolonged recession in
the New York State economy, combined with successful energy
conservation programs, has contributed to the region's (including
Canadian) excess capacity, putting downward pressure on wholesale
prices. The Company also faces enormous competition, and upward
pressure on rates, from unregulated generators. The Public
Utility Regulatory Policies Act of 1978 (PURPA) and Section 66-c
of the New York State Public Service Law (the Six-Cent Law),
combined with low gas prices and low interest rates, have created
a large and thriving unregulated power industry. By the end of
1995, the Company will have been required to purchase
approximately 2,400 MW of unregulated generating capacity at
state mandated prices well above both current market prices and
long run avoided cost estimates.
In retail markets, the Company faces competition from on-
site, self- and cogeneration, unregulated generators who wish to
sell electricity directly to the Company's retail customers,
other fuels, industrial relocation, potential municipalization
and NYPA. Generally, on-site generation is uneconomic today when
compared to a utility's incremental or marginal cost of serving
additional load. Unfortunately, on-site generation can, however,
compare favorably to traditional rates, which are based on
average embedded costs and which traditionally are designed to
collect fixed costs volumetrically. The result is that large
volume customers have subsidized small customers both within and
between classes. The Company has responded to this pressure with
a Service Classification No. 10 (SC-10) tariff which discounts
rates for large industrial customers in an attempt to effectively
compete with the on-site alternative, but keeps prices above the
marginal costs of generation. Through 1994, the Company absorbed
20% of the discounts deferred under SC-10. Under its 1995 rate
proposal, the Company would absorb all discounts above amounts
reflected in rates.
In August 1994 the Company implemented a new negotiated
contract tariff called SC-11 that allows much more flexibility in
responding to competitive pressures. The SC-11 tariff allows the
Company to sign contracts with terms of up to seven years in
response to any form of verifiable competition that the customer
is considering. This contract mechanism also allows the Company
to market economic growth initiatives more aggressively.
The Economic Development Zone Rider (EDZR) discounts
electric rates for new or additional load in a State-designated
economically distressed area. Except for the EDZR, the economic
development programs will be managed under the SC-11 tariff in
the future. The Company is also active in working with various
state and local agencies to coordinate efforts to attract new
business to the Company's service territory.
1995 FIVE-YEAR RATE PLAN. Through its Brief Opposing
Exceptions as of March 2, 1995, the Company is requesting an
increase in 1995 electric revenues of approximately $110 million
(3.5%) and an increase in 1995 gas revenues of $16.4 million
(2.7%).
The current rate proceeding has been separated into two
distinct phases. A final PSC decision on 1995 rates is not
expected until the end of April 1995. New electric rates would be
implemented about that time, along with any final adjustments to
gas rates which were effective January 1, 1995. A schedule for
the multi-year phase of the proceeding has not been established,
but is expected to extend at least into the summer of 1995.
For a further discussion of the five-year rate plan, see
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations - Regulatory
Agreements/Proposals and Item 8. Financial Statements and
Supplementary Data, Note 2.
CURRENT AND PROPOSED FUEL CLAUSES. Currently the Company
has a fuel adjustment clause (FAC) as part of its approved
tariff. The clause allows the Company to collect from or refund
to ratepayers, fuel and purchased power costs resulting from the
comparison of monthly average fuel cost rates and base cost of
fuel rates embedded in base rate energy charges.
The Company's electric FAC provides for partial pass-through
of fuel and purchased power cost fluctuations from amounts
forecast, with the Company absorbing a portion of increases or
retaining a portion of decreases up to a maximum of $15 million
per rate year. Thereafter, 100% of the fluctuation is passed on
to ratepayers. The Company also shares with ratepayers
fluctuations from amounts forecast for net resale margin and
transmission benefits, with the Company retaining/absorbing 40%
and passing 60% through to ratepayers. The amounts retained or
absorbed in 1992 through 1994 were not material.
In the current rate proceeding the Company has proposed to
eliminate the FAC and replace it with the fuel adjustment
mechanism (FAM). If this is implemented, the portion of fuel and
purchase power cost fluctuations, from amounts forecast, that the
Company would retain or absorb could reach a maximum of $20
million per rate year. For the additional years of the rate
proceeding's five-year plan (1996-1999), the 1995 fuel cost would
form the basis for the forecast and the sharing mechanism.
GAS RATE INITIATIVES. On December 20, 1994 the PSC issued
its opinion and order, "Establishing Policies and Guidelines for
Natural Gas Distributors" in connection with its generic
proceeding (the Order). The Order sets forth the policy
framework to guide the transition of local distribution companies
(LDCs) in New York in the post-FERC Order 636 environment. The
framework is designed to "assure that (1) LDCs and new entrants
can compete; (2) customers benefit from increased choices and
improved performance resulting from a more competitive industry;
and (3) core customers continue to receive quality services at
affordable rates." It distinguishes core and non-core markets
based on the customers' alternative energy sources and the
customers' ability to access these alternatives. The policies
strongly encourage LDCs to actively compete for sales to
customers with competitive alternatives, while at the same time,
unbundling services so that new entrants can effectively compete
for market share.
The Order provides LDCs greater discretion to compete by
pricing services to non-core customers on a basis more comparable
to the alternatives available to those customers. In doing so,
it further allows LDCs to supply gas to individual non-core
customers - that is, the LDC is "permitted to recognize
competitive conditions that distinguish otherwise similarly-
situated customers, as a basis for charging them different
rates." LDCs will be required to offer certain customers access
to the facilities currently managed on the customers' behalf,
such as pipeline capacity, storage facilities and receipt points.
Consistent with providing customers with more choices, LDCs will
still be allowed to offer packaged services at prices that
reflect their value to those customers, provided that the LDC can
demonstrate that "non-participating customers will benefit more
from those transactions than without them." LDCs will also be
required to offer some form of aggregation program, whereby
smaller customers of an LDC will be allowed to combine into
groups that then would be treated as a single customer.
With respect to recovery of transition costs that are being
charged to the Company by interstate pipelines as part of the
implementation of FERC Order 636, the Order provides for
continued full recovery of these costs. The Order also
recommends the initiation of a proceeding, the purpose of which
is to eliminate the current 100% flow-through gas adjustment
clause, and replace it with an incentive based mechanism. This
proceeding would also address proposals by LDCs to "assure the
availability of affordable service to customers" and provide the
opportunity to address issues of cross-subsidies among service
classifications. The Company intends to participate actively in
this proceeding.
The Order required LDCs to file draft tariffs by February
21, 1995 setting transportation rates for aggregation customers,
establishing minimum transportation volumes, providing transition
cost recovery, and establishing requirements and charges for the
use of recording meters as may be required to comply with the
Order. Because the Company's gas services are already
substantially unbundled, with the majority of its non-core
customers currently purchasing their gas supplies from
independent marketers and brokers, the Company does not believe
that the Order is likely to have a material impact on revenues
derived from gas services. The Company believes that the new and
different services required by the Order will require only
limited changes and modifications to gas service structures.
For a further discussion of FERC Order No. 636, see Gas
Supply.
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. PURPA, New York State law and PSC
policies and procedures have collectively required that the
Company purchase this power from "qualified" unregulated
generators. The prices used in negotiating purchased power
contracts with unregulated generators (Long Run Avoided Costs)
are established periodically by the PSC. Until its modification
in 1992, the statute which governed many of these contracts had
established the floor on avoided costs at $0.06/kwh (the Six-Cent
Law). The Six-Cent Law, in combination with other factors,
attracted large numbers of unregulated generator projects to New
York State and, in particular, to the Company's service
territory.
For the year ended December 31, 1994, unregulated generator
purchases were approximately $960 million (14,794,000 MWHrs.)
compared to approximately $736 million (11,720,000 MWHrs.) in
1993 and approximately $543 million (8,632,000 MWHrs.) in 1992.
In 1994, unregulated generator purchases provided approximately
32% of the Company's power supply while comprising 73% of the
Company's fuel and purchased power costs, as compared to 28% and
67%, respectively, in 1993. As of December 31, 1994, 148 of
these unregulated generators with a combined capacity of 2,592 MW
were on line and selling power to the Company. Of these, 2,273
MW are considered firm capacity (including 207 MW of unregulated
generator projects on standby). In 1994, payments to unregulated
generators represented 27% of each electric revenue dollar
billed, as compared with 22% in 1993.
On January 11, 1995, the FERC issued an order in a case
involving Connecticut Light & Power (CL&P) that PURPA forbids the
states from requiring utilities to pay more than avoided cost to
qualifying facilities (QFs) for electric power. FERC, however,
also ruled that it would not invalidate any pre-existing
contracts, but only would apply its ruling prospectively or to
contracts that were subject to a pending challenge (instituted at
the time of signing) by a utility. On the same day, FERC issued
an order that an ongoing challenge by the Company to the New York
Law requiring utilities to pay QFs a minimum of six cents for
electric power (the Six Cent Law) was moot in light of amendment
of that law in 1992 to prohibit future power purchase contracts
requiring the utility to pay more than its avoided cost. This
latter proceeding had been initiated in 1987. In April 1988,
FERC had ruled in the Company's favor, finding that the states
could not impose rates exceeding avoided cost for purchases from
QFs, but then stayed that decision in light of a rulemaking it
was instituting to address the issue. That rulemaking was never
completed.
On February 10, 1995, the Company filed a petition for
rehearing of both orders. The Company argues, among other
things, that Federal law requires FERC to apply the ruling in
CL&P in all pending cases, including its case involving the Six
Cent Law, and that it is entitled to the opportunity, either at
FERC or in the courts, to demonstrate that pre-existing power
purchase contracts resulting from the Six Cent Law should be
invalidated. The Company argues further that amendment of the
Six Cent Law did not render the proceeding addressing that law
moot because the amendment has perpetuated and, in some
instances, expanded the Company's obligation to purchase power
from QFs at rates above avoided cost. The Company intends to
press its rights vigorously, but cannot predict the outcome of
these proceedings.
In addition, the Company is involved in a number of court
cases regarding the price of energy it is required to purchase in
excess of contract levels from certain unregulated generator
("overgeneration"). The Company has paid the unregulated
generators based on its short-run avoided cost (under Service
Class No. 6) for all such overgeneration rather than the price
which the unregulated generators contend is applicable under the
contracts. The Company cannot predict the outcome of these
actions, but will continue to aggressively press its position.
Also see Item 3--Legal Proceedings, and Part II Item 7--
Management's Discussion and Analysis of Financial Condition and
Results of Operations and Item 8--Financial Statements and
Supplementary Data, Note 9 for a discussion of other initiatives
undertaken by the Company to mitigate the financial consequences
of unregulated generator purchase requirements.
NEW YORK POWER AUTHORITY (NYPA). The Company presently has
contractual rights to purchase various types and amounts of
electric power and energy from a number of generating facilities
owned by the NYPA. In 1994, these purchases amounted to
7,416,000 MWH, or about 16% of the Company's total power supply
requirements. Under the agreement for hydroelectric power
service, the Company credits to its residential customers,
subject to review by the PSC, any savings derived from the
purchase of an aggregate of 405 MW of firm and peaking hydro
power from NYPA. The following table indicates the types and
amounts of NYPA power which the Company was entitled to purchase
as of January 1, 1995 and the termination dates of its contracts
with NYPA with respect to each generating facility:
NYPA Facility and Type of Minimum Contract
Power Purchase Expiration
Requirements Date
Niagara Hydroelectric
Project on the Niagara
River near Niagara Falls,
N.Y.
(capacity 2,190,000 kw.):
Firm 126,000 kw. 2007
Replacement 445,000 kw. 2006
Expansion 180,000 kw. 2007
Peaking 175,000 kw. 2007
926,000 kw. (a)
St. Lawrence Hydroelectric
Project on the St.
Lawrence River near
Massena, N.Y.
(capacity 912,000 kw.) 104,000 kw. 2007
Blenheim-Gilboa Pumped
Storage Generating
Station in Schoharie
County, N.Y.
(capacity 1,000,000 kw.):
Pumped Storage Service 270,000 kw. 2002
Fitzpatrick Nuclear Plant
near Oswego, N.Y.
(capacity 821,000 kw.):
Allocation of available
Plant Capacity 74,000 kw. (b) Year-to
year basis
Total 1,374,000 kw.
(a) 926,000 kw. for summer of 1995; 951,000 kw. for winter of
1995-1996.
(b) 74,000 kw. for summer of 1995; 110,000 kw. for winter of
1995-1996.
The Company also transmits power from NYPA projects to
NYPA's preference and other customers and to other public and
municipal utilities within New York.
PURCHASED POWER. Total purchased power in 1994 amounted to
25,176,000 MWH, including unregulated generators and NYPA
purchases discussed above, representing approximately 55% of the
Company's total power supply requirements. The Company purchases
electricity from the New York Power Pool (NYPP) and other
neighboring utilities as needed for economic operation. The
price paid for that power is determined by specific contractual
terms. Changes in the cost of purchased power are included in
the Company's FAC. Physical limitations of existing transmission
facilities, as well as competition with other utilities and
availability of energy, impact the amount of power the Company is
able to purchase or sell. Wholesale power marketing efforts will
also become increasingly important, in a highly competitive
environment, in order to maximize the use of the Company's
surplus capacity.
FUEL FOR ELECTRIC GENERATION. COAL - The C. R. Huntley and
Dunkirk Steam Stations, the Company's only coal fired generating
stations, are expected to burn about 1.5 and 1.3 million tons of
coal, respectively, in 1995. The Company has two coal supply
contracts, one of which is scheduled to expire in 1995.
The annual average cost of coal burned from 1992 through
1994 was $1.51, $1.54 and $1.52, respectively, per million BTU,
or $39.42, $39.85 and $39.15, respectively, per ton. Changes in
the cost of coal burned, part of which are transportation
expenses, are included in the Company's FAC. See also
"Regulation and Rates" for a further discussion of the fuel
adjustment clause.
As 1994 began, the Company continued to experience the
effects of the 1993 labor dispute between the United Mine Workers
of American (UMWA) and the Bituminous Coal Operators Association.
The last remaining quantity of higher priced replacement coal was
delivered during March. The cost of coal delivered thereafter
returned to near pre-strike levels.
During 1994, the Company also successfully embarked on an
aggressive plan to reduce coal inventory levels. The yearly
average inventory at both generating stations was below a 20 day
supply.
See Environmental Matters - Air.
NATURAL GAS - The Albany Steam Station has the capability to
use natural gas, as well as residual oil, as a fuel for electric
generation. This dual-fuel capability permits the use of lower
cost fuel. During 1992, 1993 and 1994, natural gas was the
predominant fuel used, although generation at this station was
curtailed significantly in 1994 and 1993 for economic reasons
because of the requirement to purchase unregulated generator
power. The Company contracts with various suppliers for the
purchase of natural gas for the Albany station. This is an
interruptible supply; colder than normal weather and increased
demand for capacity on interstate pipelines by other firm gas
customers could restrict the amount of gas supplied. Other
natural gas used included the operation of two combustion
turbines at the Albany Steam Station (two additional Albany
turbines were placed in long-term cold standby effective April
1992). During the period 1992 through 1994, the Company,
including the Roseton station (described below), burned 19.4, 6.0
and 7.8 million dekatherms (Dt) of natural gas, respectively, at
an average cost per million Dt of $2.31, $2.07 and $2.07,
respectively.
The Company has a 25% ownership interest in Roseton Units 1
and 2. The Roseton Steam Station's first unit was modified to
dual-fuel capability with natural gas as the alternative fuel in
December 1991. The second unit's modification was completed in
July 1992 and it now has the ability to burn natural gas as an
alternate fuel.
Central Hudson Gas and Electric Corporation (CHG&E) has
three contracts (for 15 years each) for the supply of up to
100,000 mcf of natural gas for use at the Roseton plant as a
boiler fuel alternative to residual oil. The natural gas supply
is used primarily during off peak months, April through October
of each year. In 1994 approximately 2.2 million Dt (the
Company's share) of gas were used at the Roseton plant.
RESIDUAL OIL - The Company's total requirements for residual
oil in 1995 for its Albany and Oswego Steam Stations are
estimated at approximately 1.3 million barrels. Fuel sulfur
content standards instituted by New York State require 1.5%
sulfur content oil to be burned at Albany and Oswego Unit No. 5.
Oswego Unit No. 6 requires low sulfur fuel (0.7%). All oil
requirements are met on the spot market. At December 31, 1994,
there were approximately 0.6 million barrels, or more than a 45-
day supply of oil, at the Oswego Steam Station and approximately
0.4 million barrels of oil, or a 45-day supply, at the Albany
Steam Station, based on maximum burn projections.
The average price of No.6 oil at January 1, 1995 was
approximately $18.30 per barrel for 0.7% sulfur oil. For 1.5%
sulfur oil, the average price was approximately $16.40 per barrel
at the Oswego Steam Station and $15.20 per barrel at the Albany
Steam Station. The fuel oil prices quoted include the $3.0576
per barrel petroleum business tax imposed by New York State.
Changes in the cost of oil burned, part of which are shipping
expenses, are included in the FAC.
Contract arrangements for residual oil for the Roseton Steam
Station have been made by CHG&E, co-owner and operator of the
plant. Global Petroleum Corporation supplies 1.5% sulfur
residual oil under contract for all the fuel requirements of the
plant. The contract has arrangements that include certain
options regarding contract extensions.
The annual average cost of residual oil burned at the
Albany, Oswego and Roseton Steam Stations from 1992 through 1994
was $2.98, $3.11 and $3.16, respectively, per million BTU, or
$18.93, $19.84 and $19.45, respectively, per barrel.
NUCLEAR - The supply of fuel for nuclear generating plants
involves: (1) the procurement of uranium concentrates, (2) the
conversion of uranium concentrates to uranium hexafluoride, (3)
the enrichment of the uranium hexafluoride, (4) the fabrication
of fuel assemblies and (5) the disposal of spent fuel and
radioactive wastes. Agreements for nuclear fuel materials and
services for Nine Mile Point Nuclear Station Unit No. 1 (Unit 1)
and Nine Mile Point Nuclear Station Unit No. 2 (Unit 2) (in which
the Company has a 41% interest), have been made through the
following years:
Nine Mile Nine Mile
Point Nuclear Point Nuclear
Station Unit Station Unit
No. 1 No. 2
Uranium Concentrates 2000 (a) 2000 (a)
Conversion 2000 (a) 2000 (a)
Enrichment (b) (b)
Fabrication 2001 2004
(a) Arrangements have been made for procuring a portion of
the uranium and conversion requirements through the year
2000, leaving the remaining portion of the requirements
uncommitted.
(b) An enrichment contract is in place with the United
States Enrichment Corporation (USEC) through the year
2014 or the life of the reactor, whichever is less.
The uncommitted requirements for nuclear fuel materials and
services are expected to be obtained through long-term contracts
or secondary market purchases.
The Company currently has contracts with the DOE for the
disposal of spent fuel for both Units 1 and 2. Spent fuel
storage facilities at Units 1 and 2 are expected to accommodate
spent fuel discharges, while also having sufficient space
available to accept fuel in the core at that time, through the
years 1999 and 2012, respectively.
In January 1983, the Nuclear Waste Policy Act of 1982 (Act)
was enacted. The Act established a cost of $.001 per kilowatt-
hour of net generation to fund disposal of nuclear fuel
irradiated after 1982 and provided for a determination of the
Company's liability to the DOE for the disposal of nuclear fuel
irradiated prior to 1983. The Act also provides three payment
options for liquidating such liability (approximately $97.4
million at December 31, 1994) and the Company has, for Unit 1,
elected to delay payment, with interest, until the year in which
the Company ships irradiated fuel to an approved DOE disposal
facility. The Company has no such retroactive liability for Unit
2. Progress in developing the permanent DOE repository has been
slow and it is unlikely that the DOE's latest projection for
opening this facility in 2010 can be met.
The Company has been studying various alternatives for long-
term spent fuel storage at Unit 1. A design to rerack the spent
fuel pool with higher density racks has been completed that would
provide offload space until 2011. This option would be
implemented in two phases. Half of the spent fuel pool would be
reracked in 1998 and the other half in 2004. The rerack design
would require the Nuclear Regulatory Commission (NRC) review and
approval prior to implementation. The Company is also evaluating
a dry storage option where spent fuel would be stored in approved
canisters in a secure area on the plant property. The final plan
for fuel storage for Unit 1 will be finalized by April 1995.
The cost of fuel utilized at Unit 1 for 1994, 1993 and 1992
was $.62, $.56 and $.55 per million BTU, respectively. The cost
of fuel utilized at Unit 2 for 1994, 1993 and 1992 was $.48, $.54
and $.53 per million BTU, respectively.
For the recovery of nuclear fuel costs through rates and for
further information concerning costs relating to decommissioning
of the Company's nuclear generating plants, see Item 8 --
Financial Statements and Supplementary Data, Note 1 -
Depreciation, Amortization and Nuclear Generating Plant
Decommissioning Costs and Note 3 - Nuclear Plant Decommissioning.
GAS SUPPLY. The Company distributes and transports natural
gas to a geographic territory that extends from Syracuse to
Albany. The northern reaches of the system extend to Watertown
and Glens Falls. Not all of the Company's distribution areas are
physically interconnected with one another by Company-owned
facilities. Presently, nine separate distribution areas are
connected directly with CNG Transmission Corporation (CNG), an
interstate natural gas pipeline regulated by the FERC, via
seventeen delivery stations. The majority of the Company's gas
sales are for residential and commercial space and water heating.
Consequently, the demand for natural gas by the Company's
customers is seasonal and influenced by weather factors.
FERC Order No. 636, issued in April 1992, changed the
structure of interstate natural gas pipeline services and
completed the "evolution of competition, in the natural gas
industry." During 1992 and 1993, the Company actively pursued,
through the negotiation process established by the FERC, pipeline
services which would provide the Company with an appropriate
combination of firm transportation on several upstream pipelines,
CNG transportation and substantial storage rights. Negotiations
to implement Order No. 636, with CNG and other major upstream
pipelines, were essentially completed in November 1993 when the
last of the pipelines placed its revised service plans in effect.
Order No. 636 also helped complete the Company's primary
objective of replacing dependence on CNG sales service with
independently contracted gas supplies delivered through a
combination of firm transportation and storage.
The Company revised its post-Order No. 636 services to meet
peak load requirements on its system through a portfolio of firm
contracts and peak shaving contracts capable of delivering
approximately 938,000 dekatherms per day to its service area.
This portfolio includes firm transportation totaling
approximately 306,000 dekatherms on the CNG system, 50,000
dekatherms on the Iroquois system, as well as four pipelines
upstream of CNG, with firm supplies purchased under 16 different
contracts from a variety of producers and marketers in the Gulf
of Mexico, the Southwest and Canada. An additional 434,000
dekatherms of peak day requirement capacity is provided by firm
storage withdrawal rights coupled with firm winter season
transportation service on CNG. Finally, within the peak load of
938,000 dekatherms is approximately 148,000 dekatherms available
to the Company under peak shaving contracts with cogenerators on
the Company's system.
INDUSTRY SEGMENT DATA. The percentages of the total
revenues and operating income before income taxes derived from
electric and gas operations for the past three years were as
follows:
Total Revenues Operating Income
Before Income
(Excluding AFC)
Year Electric Gas Electric Gas
1994 85% 15% *85% 15%
1993 85% 15% 91% 9%
1992 85% 15% 91% 9%
* Includes the effect of the $196.6 million accrual related
to costs associated with the VERP.
See also Item 7--Management's Discussion and Analysis of
Financial Condition and Results of Operations and Item 8--
Financial Statements and Supplementary Data, Note 11.
ENVIRONMENTAL MATTERS. GENERAL - The protection and
restoration of the environment remains a strategic concern of the
Company. In response to the issues facing the Company,
management has taken a number of actions specifically designed to
mobilize Company resources. The operations of the Company are
regulated by Federal and state governmental agencies and, to some
extent, by local governments in New York, with respect to air and
water quality and other environmental matters.
In compliance with environmental statutes and consistent
with its strategic philosophy, the Company performs environmental
investigations and analyses and installs, as required, pollution
control equipment, effluent monitoring instrumentation and
materials storage/handling facilities designed to prevent or
minimize releases of potentially harmful substances.
Expenditures for environmental matters for 1994 totaled
approximately $68 million, of which approximately $37 million was
capitalized as pollution control equipment or new plant
environmental surveillance and approximately $31 million was
charged to operating expense for operation of environmental
monitoring and waste disposal programs. Expenditures for 1995
are estimated to total $51 million, of which $18 million is
expected to be capitalized and $33 million charged to operating
expense. Similar expenditures for 1996 are estimated to total
$38 million, of which $3 million is expected to be capitalized
and $35 million charged to operating expense. The expenditures
for 1995 and 1996 include the estimated costs for the Company's
proportionate share of site investigation and cleanup of waste
sites discussed under "Solid/Hazardous Waste" below.
There are concerns about the effects of electric and
magnetic fields (EMFs), including those produced by distribution,
transmission and substation installations, as well as household
wiring and appliances. Numerous studies on the effects of EMFs
have been done and are continuing throughout the world, with
results that are often hard to interpret and sometimes
conflicting. The Company is taking a proactive approach, has
worked with school officials to identify magnetic field levels at
school buildings near its transmission lines and has taken steps
to mitigate magnetic fields at these locations. It is impossible
to predict what further effect, if any, continued research and
epidemiological studies on EMFs could have on the Company and the
electric utility industry. The role of the utility industry in
addressing these environmental matters will be prominent and
could be costly.
AIR - The Company is required to comply with applicable
Federal and State air quality requirements pertaining to
emissions into the atmosphere from its fossil-fuel generating
stations and other potential air pollution sources. The
Company's four fossil-fired generating stations (Albany, Huntley,
Oswego and Dunkirk) are operated in accordance with the
provisions of Certificates to Operate issued by the New York
State Department of Environmental Conservation (DEC).
The provisions of the Clean Air Act Amendments of 1990
address attainment and maintenance of ambient air quality
standards, mobile sources of air pollution, hazardous air
pollutants, acid rain, permits, enforcement, clean air research
and other miscellaneous items. The Clean Air Act will have a
substantial impact upon the operation of electric utility fossil-
fired power plants.
The acid rain provisions of the Clean Air Act require that
sulfur dioxide (SO2) emissions be reduced nationwide by 10
million tons from their 1980 levels and that NOx emissions be
reduced by two million tons from 1980 levels. Emission
reductions will be achieved in two phases - Phase I by January 1,
1995 and Phase II by January 1, 2000.
The Company filed its Phase I acid rain permit application
and compliance plan with the Environmental Protection Agency on
February 15, 1993. The Company has two units (Dunkirk 3 and 4)
affected in Phase I. Beginning in 1995, SO2 reductions of
approximately 10,000-15,000 tons per year must be achieved. The
Company will comply with these requirements by substituting non-
Phase I units and relying on reduced utilization of these units
to satisfy its emission reduction requirements at Dunkirk 3 and
4.
With respect to NOx, Title IV of the Clean Air Act will
require emission reductions at Dunkirk 3 and 4. Low NOx burner
technology has been installed to meet the new emission
limitations. In addition, Title I of the Clean Air Act
(Provisions for the Attainment and Maintenance of National
Ambient Air Quality Standards) will require the installation of
"Reasonably Available Control Technology" (RACT) on all of the
Company's coal, oil and gas-fired units by May 31, 1995.
Compliance with Title I RACT requirements at the Company's units
will be achieved by installing low NOx burners or other
combustion control technology.
Phase II requirements associated with Title I and Title IV
of the Clean Air Act (targeted for the year 2000 and beyond)
would require the Company to further reduce its sulfur dioxide
and nitrogen oxide emissions at all of its fossil generating
units. Regulatory uncertainty surrounding these requirements
precludes an accurate assessment of compliance options and costs.
Possible options for Phase II SO2 compliance beyond those
considered for Phase I compliance include additional fuel
switching, installation of flue gas desulfurization or clean coal
technologies, repowering and the trading of emission allowances.
In September, 1994, the states comprising the Northeast
Ozone Transport Commission (New York State included) signed a
Memorandum of Understanding (MOU) that calls for each member
state to develop regulations for two additional phases of NOx
reduction beyond RACT (referred to as Phase II and Phase III, NOx
reductions). In Phase II, sources located in upstate New York
will have to reduce NOx emissions in May, 1999 by 55 percent
relative to 1990 levels or meet an emission limit of 0.2
lb./mmBtu. In Phase III, these sources will have to reduce NOx
emissions in May 2003 by 75 percent relative to 1990 levels or
meet an emission limit of 0.15 lb/mmBtu. With respect to the
Phase III program, the MOU provides that the specified reductions
may be modified if additional modeling and other scientific
analysis shows that alternative NOx reductions, together with
volatile organic compound emission reductions, will achieve
attainment of the ozone ambient air quality standard across the
region. Until details are available on how the Phase II and
Phase III NOx reductions will be implemented, definitive
compliance plans for the Company's fossil generating stations and
compliance cost estimates cannot be developed. However, it is
anticipated that major capital expenditures will not be required
until Phase III (i.e. 2003), at which time post-combustion NOx
control technology such as selective catalytic reduction may have
to be installed to achieve compliance.
The Company spent approximately $32 and $19 million in
capital expenditures in 1994 and 1993, respectively, on Phase I
Clean Air Act compliance and has included approximately $6
million for Phase I in its construction forecast for 1995 through
1999 to make combustion modifications at its fossil fired plants,
including the installation of low NOx burners at the Dunkirk and
Huntley plants.
With respect to all of these costs, the Company believes,
based on traditional and historical rate treatment, that it is
probable that all additional expenditures and costs will be fully
recoverable through rates.
See Item 7--Management's Discussion and Analysis of
Financial Condition and Results of Operations - "Asset Management
Studies-Fossil."
WATER - The Company is required to comply with applicable
Federal and State water quality requirements, including the
Federal Clean Water Act, in connection with the discharge of
condenser cooling water and other wastewaters from its steam-
electric generating stations and other facilities. Wastewater
discharge permits have been issued by DEC for each of its steam-
electric generating stations. These permits are renewed every
five years. Conditions of the permits require that studies be
performed to determine the effects of station operation on the
aquatic environment in the station vicinity and to evaluate
various technologies for mitigating losses of aquatic life.
Studies are ongoing and the Company believes that, based on
traditional and historical rate treatment, any additional
expenditures relating to or resulting from these studies will be
fully recoverable through rates.
LOW LEVEL RADIOACTIVE WASTE - See Item 8--Financial
Statements and Supplementary Data, Note 3.
SOLID/HAZARDOUS WASTE - The public utility industry
typically utilizes and/or generates in its operations a broad
range of potentially hazardous wastes and by-products. 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 waste, as
well as investigating identified industrial waste sites as to
which it may be determined that the Company contributed. The
Company has also been advised that various federal, state or
local agencies believe certain additional properties require
investigation and has prioritized the sites based on available
information in order to enhance the management of investigation
and remediation, if necessary.
The Company is currently aware of 89 sites with which it has
been or may be associated, including 47 which are Company-owned.
The Company-owned sites include 22 former coal gasification (MGP)
sites, 12 industrial waste sites and 13 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 42 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.
Investigations at each of the Company-owned sites are
designed to (1) determine if environmental contamination problems
exist, (2) if necessary, determine the appropriate remedial
actions required for site restoration and (3) 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. Since technologies are still
developing and the Company has not 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.
The Company estimates that 40 of the 47 owned sites will
require some degree of remediation and post-remedial monitoring.
Estimates of the cost of remediation and post-remedial monitoring
are based upon a number of factors. 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 $515 million.
The majority of these cost estimates relate to the MGP
sites. Of the 22 MGP sites, the Saratoga Springs and Harbor
Point (Utica, NY) sites are being investigated and remediated
pursuant to separate regulatory Consent Orders with the EPA and
the New York State Department of Environmental Conservation
(DEC), respectively. The remaining 20 MGP sites are the subject
of a multi-site Order on Consent executed with the DEC providing
for an investigation and remediation program over approximately
ten years.
Estimates of the Company's potential liability for sites not
owned by the Company, but for which the Company has been
identified as a potentially responsible party (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 PRPs since clean-up obligations
are joint and several. The Company has denied any responsibility
for certain of these PRP sites and is contesting liability
accordingly.
With respect to the 42 sites with which the Company has been
or may be associated as a PRP, the Company has recorded a
liability of $30 million, representing the estimate of its share
of the total cost to investigate and remediate these sites.
Total costs to investigate and remediate these sites are
estimated to be approximately $500 million if the Company were
required to assume 100% responsibility. Nine of the PRP sites
are included on the NPL. The Company estimates its share of the
liability for these nine sites is not material and has included
the amount in the determination of the amounts accrued.
The Company is also aware of approximately 26 formerly-owned
MGP sites and 11 fire training sites used, but not owned by the
Company, which it has been or may be associated and which may
require future investigation and possible remediation.
Presently, the Company has not determined its potential
involvement with such sites and has made no provision for
potential liabilities associated therewith.
The Company believes, based on traditional and historical
rate treatment, 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, see Item 8 - Financial Statements and Supplementary
Data, Note 2. Rate agreements in effect since 1991 provide for
recovery of anticipated investigation and remediation
expenditures. The Company has proposed in its multi-year rate
case net recovery of $13.5 million for 1995 for site
investigation and remediation. The 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 current 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 is currently providing notices of insurance
claims to carriers with respect to the investigation and
remediation costs for manufactured gas plant, industrial waste
sites and sites for which the Company has been identified as a
PRP. The Company is unable to predict whether such insurance
claims will be successful.
The Company is a defendant in an ongoing Superfund lawsuit
in Federal District Court, Northern District of New York brought
by the Federal Government. 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. In February
1994, the federal government sued several entities, including the
Company, which did not accept the government's proposed final
terms of settlement. The Company intends to vigorously oppose
and defend against the government's characterization of its
liability in this matter. See Item 3--Legal Proceedings.
NUCLEAR OPERATIONS. The Company is the owner and operator
of Unit 1 and the operator and 41% co-owner of Unit 2. Ownership
of Unit 2 is shared with Long Island Lighting Company (18%), New
York State Electric & Gas Corporation (18%), Rochester Gas and
Electric Corporation (14%), and Central Hudson Gas & Electric
Corporation (9%). Output of Unit 2, which has a capability of
1,062,000 kw., and the cost of operation and capital improvements
are shared in the same proportions as the cotenants' respective
ownership interests. For regulatory purposes, April 5, 1988 has
been recognized as the commercial operation date for Unit 2.
Unit 1 has a design capability of 613,000 kw. and was placed in
commercial operation in 1969.
The Company's nuclear operations are within the jurisdiction
of numerous federal and state regulatory agencies. The extent of
regulation by each agency varies, as does the impact such
regulation may have on plant operations. The principal agencies
include:
NRC: has primary and preemptive jurisdiction over all
health and safety aspects, operations and
decommissioning activities related to commercial
nuclear power plants.
PSC: has jurisdiction over the economic, regulatory
and rate aspects of nuclear power generation.
EPA: has jurisdiction over the discharge of airborne
effluents from generating power plants.
DEC: regulates the handling, disposition and
concentrations of "by-product" nuclear material at and
from the Unit sites, as ceded to it by the NRC.
DOE: has ultimate custody and control over all U.S.
origin spent nuclear fuel.
Federal Emergency Management Agency: has some
jurisdiction over emergency planning.
There are other agencies that have limited jurisdiction over
various aspects of nuclear plant operations.
The Company also participates in the Nuclear Energy
Institute (a trade association) and the Institute for Nuclear
Power Operations (an industry-formed group which promulgates and
monitors voluntary operating, maintenance and performance
standards).
UNIT 1 ECONOMIC STUDY. See Item 8--Financial Statements and
Supplementary Data, Note 3.
On March 15, 1995 the Independent Power Producers of New
York (IPPNY), a trade association of unregulated generators,
filed material with the PSC claiming that the Company should shut
down Unit 1 and that to fail to do so would put the Company's
shareholders at risk in terms of recovery of the Company's
investment in the Unit. IPPNY has previously taken a similar
position in the current rate case and the Company believes
IPPNY's position is motivated by a self-interested desire to
reduce generating capacity in New York State without having its
members bear any of the burden of the current oversupply
situation. Under the Financial Recovery Agreement entered into
by the Company in 1989, the Company has been operating under a
special incentive provision (see below) that also allows for
recovery of sunk costs if the Unit had been "prudently" retired
prior to early 1995. The Company believes that the most likely
way to maximize recovery of the investment in the Unit is through
continued operation. Since Unit 1 has a low generation cost
compared to the price paid for the output of virtually all of
IPPNY's members' generating plants and recently received improved
ratings in the NRC's annual review of plant management and
operations, it is likely that this action by IPPNY represents an
attempt to reduce competition its own members face rather than
being motivated by either the public interest or IPPNY's concerns
for the Company's shareholders or ratepayers.
UNIT 1 STATUS. On February 8, 1995, Unit 1 was taken out of
service for a planned refueling and maintenance outage. The next
refueling outage is scheduled to begin in February 1997. Using
NRC guidelines which reflect capacity factors with net maximum
dependable capacity during the most restrictive seasonal
conditions, Unit 1's capacity factor was approximately 99%.
UNIT 1 OPERATING INCENTIVE SHARING MECHANISM. A 1991 rate
agreement established a Unit 1 operating incentive sharing
mechanism, which was in effect from October 1, 1990 to the end of
the 1995 refueling and maintenance outage. The mechanism
provides for comparison of actual performance of Unit 1 for this
period to a capacity factor target of 61.26% and a sharing
between customers and shareholders of costs related to variances
from this target. As of March 23, 1995, the Company estimates
that it has earned approximately $19 million of incentives over
this period of which approximately $11 million has been collected
through the operation of the FAC. The determination of final
amounts earned and the method of recovery are subject to PSC
approval.
UNIT 2 STATUS. The next refueling outage is scheduled to
begin in April of 1995. Using NRC guidelines which reflect
capacity factors with net maximum dependable capacity during the
most restrictive seasonal conditions, Unit 2's capacity factor
was approximately 96%.
UNIT 2 OPERATING AGREEMENT. The Company and cotenant
companies executed an operating agreement (Agreement) in August
1989 which established the legal relationship between the Company
(as operator and 41% owner of Unit 2) and the other cotenants.
The Agreement outlines the responsibilities and participation of
the cotenants in the overall management of Unit 2, while the
Company remains responsible for day-to-day operations. The
Agreement has continued to be amended to extend the term of the
Agreement, with the latest amendment stating that the Agreement
will lapse on December 31, 1994, but provided for automatic
extensions unless terminated by at least one of the cotenants
after appropriate notice. The Agreement remains in affect.
SALP REPORT. The Company received the report on systematic
assessment of licensee performance (SALP) from the NRC, covering
activities at Nine Mile Point Station (Units 1 and 2) for the
period August 15, 1993 through January 28, 1995. The NRC report
grades nuclear performance as superior, good or acceptable in
four categories critical to plant safety and performance. The
report graded one category, Operations, as "superior" and three
categories, Maintenance, Engineering and Plant Support, as
"good".
CONSTRUCTION PROGRAM. See Item 7. Management's Discussion
and Analysis of Financial Condition and Results of Operations-
Construction and Other Capital Requirements and Item 8. Financial
Statements and Supplementary Data, Note 9 - Construction Program.
ELECTRIC SUPPLY PLANNING. The PSC has ordered the investor-
owned utilities of New York State to file integrated electric
resource plans (IERP) by July 1, 1995. These plans are also
required to be filed with the State Energy Planning Board by July
1, 1995.
While the 1995 IERP will not be complete until filed with
the PSC, studies to date indicate that the Company will not
require generating capacity to fulfill its installed reserve
requirements until the winter of 1999-2000. It is expected that
the return to operation of Oswego Unit 5 (850 MW) from long-term
cold standby status will be the most economical option for
meeting the Company's capacity needs at that time. With Oswego
Unit 5 in operation, the need for additional capacity would be
extended to the winter of 2009-2010. For this and other reasons,
the Company need not commit to the construction or acquisition of
large new generation projects for many years.
The Company intends to utilize its resource bidding process
during the next several years for various purposes. A request
for proposals (RFP) has been issued to determine whether capacity
and energy are available from market sources to permit the
Company to place up to 850 MW into long-term cold standby status.
The unit targeted for such status (Oswego Unit 6) is jointly
owned with Rochester Gas & Electric Corporation (RG&E).
Currently, the Company's intentions are to use the resource
bidding process to determine whether the return to operation of
Oswego Unit 5 represents the most economical alternative. An RFP
would be issued and bids evaluated prior to a decision to restart
that unit in 1999. Should other units be placed into long-term
cold standby status, they, too, would be restarted by the Company
only if shown to be economical compared with other alternatives.
The Company plans to develop a 6 MW wind energy project and
pursue hydro relicensing and redevelopment efforts, to the extent
that they are cost-effective.
ELECTRIC DELIVERY PLANNING. As of January 1, 1995, the
Company had approximately 130,000 miles of electric delivery
facilities. Evaluation of these facilities relative to NYPP and
Northeast Power Coordinating Council (NPCC) planning criteria and
anticipated Company internal and external demands is an ongoing
process intended to minimize the capital requirements for
expansion of these facilities. The Company is evaluating new
planning tools and methods to determine the adequacy and
reliability of its electric delivery facilities. As the
expansion of the unregulated generator market progresses, these
new generators impose technical, economic and construction
burdens on the Company. The Company is typically able to recover
the cost of interconnections constructed for unregulated
generator access to the Company's system, as well as costs
incurred by the Company to enhance its existing system due to the
unregulated generator tie-ins.
EPAct provides the FERC with broad authority to mandate
wholesale transmission access, which could potentially open the
interstate transmission system to new wholesale power
transactions. Under the Act, any electric utility or wholesale
power producer may apply to FERC for an order requiring a utility
to transmit such energy, including enlargement of transmission
facilities. FERC is prohibited from ordering a utility to
transmit power to an end user (retail wheeling). FERC also
cannot order a utility to transmit power if to do so would impair
the utility's ability to recover all costs of providing these
services.
The Company has reviewed the adequacy of its electric
delivery facilities in the context of the IERP and has
determined, on a regional basis, which delivery facilities are
capable of supporting new unregulated generator resources. The
Company has also entered into wheeling agreements with several
unregulated generation project developers for sales to other
utilities. The annual value of this wheeling activity was
approximately $68 million in 1994, which is projected to increase
to $86 million in 1995 through 1997. Under current ratemaking
practices, revenues from wheeling are generally for the benefit
of ratepayers.
The Company is committed to a policy of providing
transmission service upon request, provided that the revenue
derived from such services protects the economic well-being of
the Company's customers.
DEMAND-SIDE MANAGEMENT PROGRAMS. Traditionally, the Company
served customer loads by building and operating the supply
resources needed to meet growing demand. In recent years, the
PSC has encouraged the Company and other state utilities to
promote energy efficient programs as a lower cost alternative of
meeting customer energy needs.
The Company's DSM programs are an important part of the
Company's IERP process (see "Electric Supply Planning"). Current
plans for DSM are expected to contribute as much as 113 MW of
capacity requirement by the year 2000 and reduce annual energy
usage by 744 GWH.
In 1994, the Company invested approximately $36 million in
DSM programs. Preliminary results estimate annual energy
reductions of 235,000 MWH and a coincident peak reduction of
approximately 70 MW. Company sponsored programs are targeted at
residential electric water heating, space heating, and new
construction. Commercial and industrial programs address
lighting, motors, adjustable speed drives and other custom
conservation measures.
The DSM program is in a transition from a financial
incentive approach to an information, customer education and
facilitation approach. This non-rebate approach is viewed as a
more cost effective means of promoting DSM.
RESEARCH AND DEVELOPMENT. Research is focused to directly
benefit the Company's customers and obtain a short-term return on
R&D investments. The Company maintains a substantial research
and development program aimed at supporting the Company and its
customers in the delivery and use of energy products and the
practical applications for new and existing technologies in the
energy business. These efforts are aimed at (1) improving
efficiency; (2) minimizing environmental impacts; (3) minimizing
maintenance costs; (4) improving facility availability; and (5)
developing renewable energy technologies.
Research and development expenditures are charged to
operating expenses through the Company's research and development
revenue and expenditures matching plan authorized by the PSC.
Research and development expenditures in 1994, 1993 and 1992 were
approximately $37.3, $39.0 and $35.2 million, respectively. A
reduction in expenses occurred in 1994 as a result of the effects
of a planned downsizing in 1995. R&D expenditures for 1995 are
budgeted at approximately half the 1994 level.
EMPLOYEE RELATIONS. All of the Company's non-supervisory
production and clerical workers subject to collective bargaining
are represented by the International Brotherhood of Electrical
Workers (AFL-CIO). A two-year-nine-month agreement between the
Company and the union, which became effective June 1, 1993,
provides for annual wage increases of 4% through 1995 and
includes modifications to employee pension and health plans and
changes in various work practices. It is estimated that
approximately 75% of the Company's total labor costs are
applicable to operation and maintenance and approximately 25% are
applicable to construction (and accordingly are capitalized).
The Company's work force at December 31, 1994 numbered
approximately 9,200, of whom approximately 6,600 are union
members as compared with approximately 11,300 and approximately
8,000 on December 31, 1993, respectively.
LIABILITY INSURANCE. As of January 31, 1995, the Company's
Directors & Officers liability insurance was renewed. This
coverage includes nuclear operations and insures the Directors
and officers against obligations incurred as a result of their
indemnification by the Company. The coverage also insures the
officers and Directors against liabilities for which they may not
be indemnified by the Company, except for a dishonest act or
breach of trust.
ITEM 2. PROPERTIES.
ELECTRIC SERVICE. As of January 1, 1995, the Company owned
and operated four fossil fuel steam plants (as well as having a
25% interest in the Roseton Steam Station and its output), two
nuclear fuel steam plants, various diesel generating units and 70
hydroelectric plants. The Company also leases small
hydroelectric plants and purchases substantially all of the
output of 75 others. The Company's Canadian subsidiary, Opinac
Energy Corporation, owns Canadian Niagara Power Company, Limited
(owner and operator of the 76.8 MW Rankine hydroelectric plant)
which distributes electric power within the Province of Ontario
and a windmill generator in the Province of Alberta. In
addition, the Company has contracts to purchase electric energy
from NYPA and other sources. See Item 1 -- Business. -
"Unregulated Generators", "New York State Power Authority (NYPA)"
and "Purchased Power" and Item 8 -- Financial Statements and
Supplementary Data, Note 9 and also Electric and Gas Statistics.
The following is a list of the Company's major generating
stations at February 1, 1995:
Company's
Share of
Net
Station, Location and Percent Capability
Ownership Energy in
Source Megawatts
Huntley, Niagara River (100%) Coal 730
Dunkirk, Lake Erie (100%) Coal 570
Albany, Hudson River (100%) Oil/Natural
Gas 400
Oswego, Lake Ontario (100%)
(Unit 5) Oil 850 (a)
Oswego, Lake Ontario (76%)
(Unit 6) Oil 646
Roseton, Hudson River (25%) Oil/Natural
Gas 300
Nine Mile Point, Lake Ontario (100%) Nuclear 613
(Unit 1)
Nine Mile Point, Lake Ontario (41%) Nuclear 435
(Unit 2)
(a) On April 14, 1994, Unit 5 was put into long-term cold
standby.
On March 30, 1994, the Company and Central Hudson Gas and
Electric Corporation, the operator of the Roseton plant, agreed
to terminate and withdraw for approval a 1987 Amendment to the
Roseton agreement, which was pending approval by the PSC. The
March 30, 1994 agreement also includes an option for the Company
to extend its interest in Roseton beyond 2004.
As of December 31, 1994, the Company's electric transmission
and distribution systems were comprised of 965 substations with a
rated transformer capacity of approximately 28,600,000 kva.,
about 9,200 circuit miles of overhead transmission lines, about
1,200 cable miles of underground transmission lines, about
111,000 conductor miles of overhead distribution lines and about
8,500 cable miles of underground distribution cables, only a part
of such transmission and distribution lines being located on
property owned by the Company. The electric system of the
Company and Canadian Niagara Power Company, Limited is directly
interconnected with other electric utility systems in Ontario,
Quebec, New York, Massachusetts, Vermont and Pennsylvania, and
indirectly interconnected with most of the electric utility
systems in the United States.
Seasonal variation in electric customer load has been
consistent. Over the last five years, the Company's maximum
hourly demand has occurred in the winter months; however, on
occasion summer peaks have approached the level of the winter
peaks. The maximum simultaneous hourly demand (excluding economy
and emergency sales to other utilities) on the electric system of
the Company for the twelve months ended December 31, 1994
occurred on January 19, 1994 and was 6,458,000 kw., of which
456,000 kw. was generated in hydroelectric plants, 3,227,000 kw.
was generated in thermal electric plants and 3,350,000 kw. (of
which 2,808,000 kw. was firm) was purchased. Economy and
emergency sales to other utilities on such date were 575,000 kw.
The results of litigation in other jurisdictions indicate
that a potentially substantial problem may exist with respect to
the Company's title and legal rights to gas and electric
facilities on native American reservations across the Company's
system. A longstanding Federal statute was interpreted to
require Federal approval of all conveyances from native
Americans. The issue is now being raised by certain native
American tribes within the Company's service territory. The
Company is unable to estimate any potential costs associated with
this issue, although it believes any such cost would be
recoverable in rates, based on traditional ratemaking principles.
NEW YORK POWER POOL. The Company, six other New York
utilities and NYPA comprise the New York Power Pool, through
which they coordinate the planning and operation of their
interconnected electric production and transmission facilities in
order to improve reliability of service and efficiency for the
benefit of customers of their respective electric systems.
NUCLEAR PROPERTY INSURANCE. The Nine Mile Point Nuclear
Site has $500 million primary nuclear property insurance with the
Nuclear Insurance Pools (ANI/MRP). In addition, there is $2,250
million in excess of the $500 million primary nuclear insurance
with the Nuclear Electric Insurance Limited (NEIL). The total
nuclear property insurance is $2.75 billion.
NEIL is a utility industry-owned mutual insurance company
chartered in Bermuda. NEIL also provides insurance coverage
against the extra expense incurred in purchasing replacement
power during prolonged accidental outages. As summarized below,
the insurance provides coverage for outages for 156 weeks after a
21-week waiting period.
Nine Mile Point
Unit No. 1 Unit No. 2
Weekly indemnity for 52 weeks
after 21 week waiting period $ 624,604 $ 538,748
Weekly indemnity for next 52 weeks 499,683 430,640
Weekly indemnity for next 52 weeks 499,683 430,640
Total aggregate payment available 84,446,440 72,801,456
NEIL insurance is subject to retrospective premium
adjustment for which the Company could be assessed up to
approximately $17.2 million per loss.
NUCLEAR LIABILITY INSURANCE. See Part II - Item 8.
Financial Statements and Supplementary Data - Note 3.
GAS SERVICE. The Company distributes gas purchased from
suppliers and transports gas owned by others. As of December 31,
1994, the Company's natural gas system was comprised of
approximately 7,400 miles of pipelines and mains, only a part of
which is located on property owned by the Company. The maximum
24-hour coincidental send-out of natural gas by the Company for
the twelve-months ended December 31, 1994 was 995,801 dekatherms
and occurred on January 26, 1994. A new maximum day gas send-out
of 1,209,868 dekatherms was set on February 6, 1995.
SUBSIDIARIES. One of the Company's subsidiaries, Opinac
Energy Corporation, a Canadian-based company, owns Canadian
Niagara Power Company, Limited (CNP). CNP generates electricity
at its Niagara Falls, Ontario hydro plant for the wholesale
market and for its distribution system in Fort Erie, Ontario.
A former subsidiary, HYDRA-CO Enterprises, Inc. (HYDRA-CO),
develops, owns and/or operates co-generation and small power
plants both within and outside of the Company's service territory
and generally in conjunction with other parties. On January 9,
1995, the Company sold HYDRA-CO. The Company realized proceeds
of more than $200 million with an approximate gain on the sale of
$10 million.
MORTGAGE LIENS. Substantially all of the Company's
operating properties are subject to a mortgage lien securing its
mortgage debt.
ITEM 3. LEGAL PROCEEDINGS.
See also Item 8 -- Financial Statements and Supplementary
Data, Note 9 and Item 1 -- Unregulated Generators and
Environmental Matters: Solid/Hazardous Waste.
1. 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, which the Company believes is
recoverable in the ratesetting process.
2. On July 21, 1988, the Company became a defendant in an
ongoing Superfund lawsuit in Federal District Court,
Northern District of New York brought by the Federal
Government. 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 pick up waste oil at locations throughout
Central New York, allegedly including one or more
Company facilities.
The government issued a final settlement demand upon the
Company in February 1994, including a settlement figure
which was rejected by the Company. Litigation is now
proceeding against the Company and several other PRP
defendants who also elected not to accept the terms of
the government's final settlement demand. The Company,
in conjunction with the Buffalo Sewer Authority, filed a
Fourth Party Complaint in March 1994 against several
additional PRP's which had not been included in the
government's action. The ongoing litigation remains in
the discovery stage as of March 1995. The Company is
unable to predict the ultimate outcome of this
proceeding.
3. On June 22, 1993, the Company and twenty other
industrial entities and the owner/operator of the Pfohl
Brothers Landfill near Buffalo, New York, were sued in
New York Supreme Court, Erie County, by a group of
residents living in the vicinity of the landfill seeking
compensation and damages for economic loss and property
damages claimed to have resulted from contamination
emanating from the landfill. In addition, on January
18, 1995, the Company was served a Summons and Complaint
as one of 17 defendants named in a toxic tort action
filed in the Erie County Supreme Court (Frazer, et al.
v. Westinghouse Electric Corp., et al.). The suit
alleges exposure on the part of the plaintiffs to toxic
chemicals emanating from the Pfohl Brothers Landfill,
resulting in the alleged causation of cancer in each of
the plaintiffs. The plaintiffs seek compensatory and
punitive damages in the amount of approximately $60
million. The Company was notified by the state
Department of Environmental Conservation in 1986 of its
status as a potentially responsible party (PRP) in
connection with the contamination of this landfill, but
has not taken an active role in the remediation process
because of the existence of minimal evidence that
hazardous substances generated by the Company were
disposed there. It has been alleged, however, that
another defendant (Downing Container Division of Waste
Mgt. of N.Y.) transported waste materials to the
landfill from the Company's Dewey Avenue Service Center
during the 1960's. To date, no governmental action has
been taken against the Company as a PRP. The Company
has undertaken to establish defenses to the allegations
in both lawsuits, and is investigating its alleged
connection to the landfill to determine whether
participation in an established and ongoing voluntary
remedial program by identified PRPs is warranted. The
Company is unable to predict the ultimate outcome of
this proceeding.
4. In March 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 plaintiff
sought enforcement of the original contract or
compensatory and punitive damages in an aggregate amount
that would not exceed $1 billion, excluding pre-judgment
interest.
In July 1994, the New York Supreme Court dismissed
Inter-Power's complaint for lack of merit and denied
Inter-Power's cross-motion to compel disclosure. Inter-
Power is pursuing appeals of this decision. The Company
believes it has meritorious defenses and will continue
to defend the lawsuit vigorously.
5. In November 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. In January 1994, the defendants
filed a joint motion to dismiss Fourth Branch's
complaint. This motion has yet to be decided. The
Company understands that Fourth Branch has filed for
bankruptcy.
In October 1994, Fourth Branch petitioned the PSC to
direct the Company to sell the Mechanicville facility to
Fourth Branch for fair value and to relinquish its FERC
license, or in the alternative, to require the Company
to turn over to Fourth Branch its rate base investment
in the plant. The Company has opposed this petition.
6. The Medina Power Company is an independent power project
with a contract requiring it to be a qualifying facility
(QF) under federal law or face a contractual penalty.
Having come on-line without a steam host, Medina did not
meet this QF requirement, subjecting it to a 15% rate
reduction. The Company advised Medina that it had
exercised its contract right and reduced the rate
accordingly. Medina filed suit against the Company on
June 8, 1994 in Federal District Court, Western District
of New York seeking $40 million in compensatory damages,
a trebling of this amount to $120 million under the New
York State antitrust laws, and $100 million in punitive
damages. The Company believes Medina's case is without
merit, but cannot predict the outcome of this action.
7. 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.
On February 4, 1994, the Company notified the owners of
nine projects with contacts 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 as required by agreements 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 for the
projects. As of February 28, 1995, 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 assurance of future performance from
Encogen. On April 4, 1994, the Company filed its answer
and counterclaim for declaratory judgment relating to
the Company's exercise of its right to demand adequate
assurance. Encogen has amended its complaint, rescinded
its prima facie tort claim, and filed a motion of
judgment on the pleadings;
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 assurance 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. On April 4, 1994, the Company filed its
answer and counterclaim for declaratory judgment
relating to the Company's exercise of its right to
demand adequate assurance. On October 5, 1994, Sterling
moved for summary judgment;
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. On April 4, 1994,
the Company filed its answer and counterclaim for
declaratory judgment relating to the Company's exercise
of its right to demand adequate assurance. On November
2, 1994, NorCon filed for summary judgment.
While the Company will continue to press for adequate
assurance that the owners of these projects will honor
their repayment obligations, the Company can neither
provide any judgement regarding the likely outcome nor
any estimate or range of possible loss or reduction of
exposure in these cases. Accordingly, no provision for
liability, if any, that may result from any of these
suits has been made in the Company's financial
statements.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
The Company has nothing to report for this item.
EXECUTIVE OFFICERS OF REGISTRANT
All executive officers of the Company are elected on an annual
basis at the May meeting of the Board of Directors or upon the filling
of a vacancy. There are no family relationships between any of the
executive officers. There are no arrangements or understandings
between any of the officers listed below and any other person pursuant
to which he or she was selected as an officer.
EXECUTIVE AGE AT CURRENT AND PRIOR DATE COMMENCED
12/31/94 POSITIONS
William E. Davis 52 Chairman of the Board May 1993
and Chief Executive Officer
Vice Chairman of the Board November 1992
of Directors
Senior Vice President - April 1992
Corporate Planning
Vice President - February 1990
Corporate Planning
Executive Deputy Prior to
Commissioner of the New joining the
York State Energy Office Company
*John M. Endries 52 President June 1988
B. Ralph Sylvia 54 Executive Vice President - November 1990
Nuclear Operations
Senior Vice President - July 1990
Nuclear Operations
Senior Vice President - Prior to
Nuclear Operations, joining the
Detroit Edison Company
David J. Arrington 43 Senior Vice President - December 1990
Human Resources
Vice President - Prior to
Human Resources - joining the
Worldwide Operations, Company
Sara Lee Bakery
Darlene D. Kerr 43 Senior Vice President - January 1994
Electric Customer Service
Vice President - Electric July 1993
Customer Service
Vice President - Gas February 1991
Marketing and Rates
Vice President - System May 1988
Electric Operations
Gary J. Lavine 44 Senior Vice President - October 1992
Legal & Corporate Relations
and General Counsel
Senior Vice President - May 1991
Legal & Corporate Relations,
General Counsel and Secretary
Senior Vice President - October 1990
Legal & Corporate Relations
Vice President - General November 1987
Counsel and Secretary
Robert J. Patrylo 48 Resigned August 1994
Senior Vice President - December 1990
Gas Customer Service
President - RJP Associates Prior to
Philadelphia Gas Works: joining the
President and Chief Company 1987 -
Executive Officer 1989
John W. Powers 56 Senior Vice President - October 1990
Finance & Corporate
Services
Senior Vice President March 1990
Senior Vice President - November 1987
Treasurer
*Michael P. Ranalli 61 Senior Vice President - October 1990
Electric Supply & Delivery
Senior Vice President February 1987
Theresa A. Flaim 45 Vice President - Corporate April 1994
Strategic Planning
Vice President - Corporate April 1993
Planning
Manager - Gas Rates & June 1991
Integrated Resource
Planning
Director, Demand-Side November 1987
Planning
Harold J. Bogan 65 Retired September 1994
Secretary October 1992
Assistant Secretary January 1968
Kapua A. Rice 43 Secretary September 1994
Assistant Secretary October 1992
Manager - Legal & July 1991
Corporate Relations
Office Administrator - Law November 1989
Steven W. Tasker 37 Vice President - December 1993
Controller
Controller May 1991
Assistant Controller October 1988
* In October 1994, announced plans to retire during 1995. Effective
April 3, 1995, Albert J. Budney, Jr. will be President and Chief
Operating Officer. For further information see Part III - Item 10.
PART II
ITEM 5. MARKET FOR THE REGISTRANTS COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Company's common stock and certain of its preferred
series are listed on the New York Stock Exchange. The common
stock is also traded on the Boston, Cincinnati, Midwest, Pacific
and Philadelphia stock exchanges. Common stock options are
traded on the American Stock Exchange. The ticker symbol is
"NMK".
Preferred dividends were paid on March 31, June 30,
September 30 and December 31. Common stock dividends were paid
on February 28, May 31, August 31 and November 30. The Company
presently estimates that none of the 1994 common or preferred
stock dividends will constitute a return of capital and therefore
all of such dividends are subject to Federal tax as ordinary
income.
The table below shows quoted market prices and dividends per
share for the Company's common stock:
DIVIDENDS PRICE RANGE
PAID
1994 Per Share High Low
1st Quarter $.25 $20 5/8 $17 3/4
2nd Quarter .28 19 14 5/8
3rd Quarter .28 17 1/2 12
4th Quarter .28 14 3/8 12 7/8
1993
1st Quarter $.20 $22 3/8 $18 7/8
2nd Quarter .25 24 1/4 21 5/8
3rd Quarter .25 25 1/4 23 3/4
4th Quarter .25 23 7/8 19 1/4
OTHER STOCKHOLDER MATTERS: The holders of Common Stock are
entitled to one vote per share and may not cumulate their votes
for the election of Directors. Whenever dividends on Preferred
Stock are in default in an amount equivalent to four full
quarterly dividends and thereafter until all dividends thereon
are paid or declared and set aside for payment, the holders of
such stock can elect a majority of the Board of Directors.
Whenever dividends on any Preference Stock are in default in an
amount equivalent to six full quarterly dividends and thereafter
until all dividends thereon are paid or declared and set aside
for payment, the holders of such stock can elect two members to
the Board of Directors. No dividends on Preferred Stock are now
in arrears and no Preference Stock is now outstanding. Upon any
dissolution, liquidation or winding up of the Company's business,
the holders of Common Stock are entitled to receive a pro rata
share of all of the Company's assets remaining and available for
distribution after the full amounts to which holders of Preferred
and Preference Stock are entitled have been satisfied.
The indenture securing the Company's mortgage debt provides
that retained earnings shall be reserved and held unavailable for
the payment of dividends on Common Stock to the extent that
expenditures for maintenance and repairs plus provisions for
depreciation do not exceed 2.25% of depreciable property as
defined therein. Such provisions have never resulted in a
restriction of the Company's retained earnings.
At year end, about 92,000 stockholders owned common shares
of the Company and about 6,000 held preferred stock. The chart
below summarizes common stockholder ownership by size of holding:
SIZE OF HOLDING
(Shares) TOTAL STOCKHOLDERS TOTAL SHARES HELD
1 to 99 35,919 1,045,670
100 to 999 50,539 12,596,578
1,000 or more 5,247 130,669,218
91,705 144,311,466
ITEM 6. SELECTED FINANCIAL DATA
As discussed in Management's Discussion and Analysis of Financial Condition and Results of
Operations and Notes to Consolidated Financial Statements, certain of the following
selected financial data may not be indicative of the Company's future financial condition
or results of operations.
1994 1993 1992 1991 1990
Operations: (000's)
Operating revenues . . . . . . . . . $4,152,178 $3,933,431 $3,701,527 $3,382,518 $3,154,719
Net income . . . . . . . . . . . . . 176,984 271,831 256,432 243,369 82,878
Common stock data:
Book value per share at year end . . $17.06 $17.25 $16.33 $15.54 $14.37
Market price at year end . . . . . . 14 1/4 20 1/4 19 1/8 17 7/8 13 1/8
Ratio of market price to book value 83.5% 117.4% 117.1% 115.0% 91.4%
at year end. . . . . . . . . . . . .
Dividend yield at year end . . . . . 7.9% 4.9% 4.2% 3.6% 0.0%
Earnings per average common share. . $ 1.00 $ 1.71 $ 1.61 $ 1.49 $ .30
Rate of return on common equity . . 5.8% 10.2% 10.1% 10.0% 2.1%
Dividends paid per common share. . . $ 1.09 $ .95 $ .76 $ .32 $ .00
Dividend payout ratio. . . . . . . . 109.0% 55.6% 47.2% 21.5% 0.0%
Capitalization: (000's)
Common equity. . . . . . . . . . . . $2,462,398 $2,456,465 $2,240,441 $2,115,542 $1,955,118
Non-redeemable preferred stock . . . 290,000 290,000 290,000 290,000 290,000
Redeemable preferred stock . . . . . 256,000 123,200 170,400 212,600 241,550
Long-term debt . . . . . . . . . . . 3,297,874 3,258,612 3,491,059 3,325,028 3,313,286
Total. . . . . . . . . . . . . . . 6,306,272 6,128,277 6,191,900 5,943,170 5,799,954
First mortgage bonds maturing within
one year . . . . . . . . . . . . . . - 190,000 - 100,000 40,000
Total. . . . . . . . . . . . . . . $6,306,272 $6,318,277 $6,191,900 $6,043,170 $5,839,954
Capitalization ratios: (including first mortgage bonds maturing within one year):
Common stock equity. . . . . . . . . 39.0% 38.9% 36.2% 35.0% 33.5%
Preferred stock. . . . . . . . . . . 8.7 6.5 7.4 8.3 9.1
Long-term debt . . . . . . . . . . . 52.3 54.6 56.4 56.7 57.4
Financial ratios:
Ratio of earnings to fixed charges . 1.91 2.31 2.24 2.09 1.41
Ratio of earnings to fixed charges
without AFC. . . . . . . . . . . . . 1.89 2.26 2.17 2.03 1.35
Ratio of AFC to balance available for 6.3% 6.7% 9.7% 9.3% 52.8%
common stock . . . . . . . . . . . .
Ratio of earnings to fixed charges
and preferred stock dividends. . . . 1.63 2.00 1.90 1.77 1.17
Other ratios-% of operating revenues:
Fuel, purchased power and purchased gas.. 39.6% 36.1% 34.1% 32.1% 36.9%
Other operation expenses. . . . . 18.2 20.9 19.7 20.0 19.9
Maintenance, depreciation and
amortization . . . . . . . . . . 12.3 13.0 13.5 14.4 14.4
Total taxes . . . . . . . . . . . 14.7 16.2 17.3 16.4 14.4
Operating income. . . . . . . . . 10.4 13.3 14.2 15.5 14.3
Balance available for common
stock. . . . . . . . . . . . . . 3.5 6.1 5.9 6.0 1.3
Miscellaneous: (000's)
Gross additions to utility plant . . $ 490,124 $ 519,612 $ 502,244 $ 522,474 $ 431,579
Total utility plant. . . . . . . . . 10,485,339 10,108,529 9,642,262 9,180,212 8,702,741
Accumulated depreciation and
amortization . . . . . . . . . . . . 3,449,696 3,231,237 2,975,977 2,741,004 2,484,124
Total assets . . . . . . . . . . . . 9,649,439 9,471,327 8,590,535 8,241,476 7,765,406
/TABLE
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW OF 1994 RESULTS
------------------------
Earnings declined to $143.3 million or $1.00 per share as
compared to $240.0 million or $1.71 per share in 1993, reflecting
management's decision to charge earnings for nearly all of the
cost of the Voluntary Employee Reduction Program (VERP),
described below, rather than seek rate recovery, based on the
impact on future rates of deferring and recovering these costs.
The VERP had been initiated to bring the Company's staffing
levels and work practices more into line with peer utilities and
to enable the Company to become more competitive in its cost
structure. Without the VERP charge of approximately $197 million
($.89 per share), earnings would have improved, reflecting
continued cost control efforts and improved gas sales. Also,
because of the Company's NERAM (described below), shortfalls in
all classes of sales, equivalent to $.46 per share in 1994, were
deferred for future recovery in rates. The Company's 1995 and
multi-year rate proceedings do not seek to extend the NERAM in
view of the pricing flexibility sought, although the separation of
the 1995 phase of the case may present some opportunity to extend
this mechanism. The Company's earned return on equity was 5.8%,
but without the VERP charge would have been 10.7%, somewhat
below the PSC authorized return on equity on electric utility
operations of 11.4%. Earnings for 1995 depend substantially on
the outcome of the 1995 rate case discussed below and the level
of rate discounts necessary to minimize loss of industrial
customers. An Administrative Law Judge's Recommended Decision,
discussed below, if adopted by the PSC, could result in 1995
earnings being considerably lower than 1994 earnings exclusive of
VERP costs. Beyond 1995, earnings will depend on the outcome
of the multi-year rate case, also discussed below, and the
extent to which competition may erode the Company's revenues
without relief from the burden of regulatory and
legislatively mandated costs.
The Company increased the common stock dividend 12% in 1994
to an annual rate of $1.12. Exclusive of the VERP charge, the
common dividend payout ratio was relatively low, 57.7%, as
compared to the rest of the electric and gas industry in 1994.
However, several utilities reduced common dividend levels and
resulting payout ratios in 1994, stating publicly that such
actions were to better position these companies for a more
competitive future. In making future dividend decisions, the
Company must likewise evaluate the results of the 1995 and multi-
year phases of its pending rate case and the degree of
competitive pressure on its prices and, therefore, on its future
earnings.
The outcome of these rate proceedings will have a
significant effect on the Company's liquidity and financing
requirements and its ability to obtain financing on customary
terms. Short-term debt exceeded $400 million at December 31,
1994. A substantial portion of this short-term debt was repaid
in January 1995 with the proceeds from the sale of HYDRA-CO
(discussed later). The Company must renew a significant
portion of its bank credit arrangements in 1995, and while it
expects to be able to secure new arrangements, the cost may be
significantly higher. The Company also faces a possible downgrade
in the ratings of its senior securities to below investment grade.
While management believes long-term debt financing can still be
secured by issuing First Mortgage Bonds, the cost of such securities
will likely be higher. The Company is precluded from issuing
preferred stock in 1995 due to insufficient dividend coverage, as a
result of the VERP writeoff.
The Company is increasingly challenged to maintain its
financial condition in the face of expanding competition and
probable erosion of traditional regulation. While utilities
across the nation must address these concerns to varying degrees,
the Company believes that it is more vulnerable than others to
competitive threats. The factors contributing to this
vulnerability include a large industrial customer base, an
oversupply of high cost mandated power purchases from unregulated
generators, an excess supply of wholesale power at relatively low
prices and a high tax burden. Recent changes in state leadership
may change the energy policies of New York State. The Company will
be pursuing actions to redress inequities and reform regulatory
policies that have contributed to the Company's increasing prices.
The following sections present an assessment of competitive
conditions and steps being taken to improve the Company's
strategic and financial position.
CHANGING COMPETITIVE ENVIRONMENT
--------------------------------
The potential intensity and accelerating pace of competition
may be the most significant factor driving fundamental changes in
the way utilities, including the Company, are being managed. The
Company believes that the price of electricity may be the most
important element of future success in the industry and has
intensified its efforts to reduce various costs that
significantly influence the price of electricity. The ability to
control or reduce costs may be significantly limited in a number
of ways, particularly in the areas of state mandated unregulated
generator contracts and excessive taxes such as the gross
receipts tax and property taxes. These costs are among the most
prominent causes of the Company's recent increases in prices, but
may be the most controversial problems to solve as judicial,
regulatory and/or legislative action will almost certainly be
needed to achieve desired results. The dismissal of the Inter-
Power lawsuit and certain developments in the Sithe/Alcan
proceeding described below demonstrate some progress, but much
more needs to be accomplished. The failure to secure favorable
judicial, regulatory and/or legislative actions in the near
future could have, depending on the pace of competition, severe
financial consequences to the Company and would require dramatic
steps to protect stockholder interests.
The Company has made significant progress in managing the
costs under its direct control. As described below, the Company,
as part of its downsizing efforts, completed the VERP program, in
which approximately 1,400 active employees elected to
participate. Since December 1992, the employee level will have
been reduced by over 3,100, or 27%. Capital spending has also
been reduced sharply in recent years, with electric construction
spending in future years expected to be limited to the level of
depreciation expense, thereby resulting in little growth in
traditional rate base. The Company remains focused on materially
reducing its total costs.
The increasing movement towards a competitive environment
has required regulators on both the state and federal levels to
begin to address the many substantial issues confronting electric
utilities. During 1994, the Federal Energy Regulatory Commission
(FERC) and the New York State Public Service Commission (PSC)
each provided or proposed guidelines to address different aspects
of competition. The FERC issued guidelines for pricing electric
transmission service and proposed guidelines for the recovery of
stranded costs, which are unrecoverable due to a change in the
regulatory environment. Meanwhile, the PSC, in Phase I of its
generic competitive proceeding, adopted guidelines to govern
flexible rates which could be offered by utilities to retain
qualified customers. Phase II of this proceeding will examine
issues relating to the establishment of a wholesale and retail
competitive markets (see "Defining Competitive Challenges"
below).
DEFINING COMPETITIVE CHALLENGES
-------------------------------
COMPANY COMPETITIVENESS STUDY. Under the terms of its 1994
Rate Agreement with the PSC, the Company filed a
"competitiveness" study 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. 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 Company generates electricity from diverse sources to
reduce sensitivity to changes in the economics of any single fuel
source. However, the average cost of these diverse fuel sources
may be greater than any single fuel source. While the Company's
average generation costs are competitive with costs 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 retail customers are allowed direct access to the wholesale
generation market. Under these circumstances, by-pass (i.e.,
sale directly to existing customers by others) of the Company's
generation system is a growing threat, although no regulatory
structure for by-pass currently exists in New York State. A
growing number of municipalities within the Company's service
territory are investigating the possibility of achieving by-pass
through formation of their own utility operations. As wholesale
entities these new utilities would have open access to
transmission and thus would be able to acquire alternative
sources of supply. While the municipalities exploring this
possibility are mostly in the earliest stages of inquiry and
currently represent an extremely small percentage of Company
sales, municipalization has the potential to adversely affect the
Company's customer base and profitability.
From a broader industry perspective, the Company's
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 Company and devastate the social
programs delivered by the Company. While aggressive cost
management must be part of any response to competition, it alone
cannot address the financial consequences that may arise from any
sudden and dramatic policy change. As mentioned above, a
significant portion of the Company's costs are outside its direct
control. The Company believes that regulators, legislators, and
utilities must collaborate to deal with overpaid unregulated
generation and other issues to create a fair and equitable
transition to increased competition that addresses the obligation
to serve, including addressing regulatory obligations for social
programs, (i.e., low-income programs), and provide for proper
recovery of shareholder's investment.
Certain adversaries of the Company in New York State and
certain governmental officials have stated that the best way for
the Company to address competitive issues would be to take
substantial, but unspecified in amount, writedowns of its assets,
particularly its nuclear and fossil generating plants. The
Company's position is that any proper solution to the problems
posed by increasing competition and deregulation must be
substantially more evenhanded, and will necessarily be more
complicated, than any such proposal. The Company will vigorously
contest inequitable solutions to competitive conditions.
FERC NOPR ON STRANDED INVESTMENT. The FERC issued a Notice
of Proposed Rulemaking (NOPR) on June 29, 1994 proposing rules
governing the ability of utilities to recover wholesale and
retail stranded investments (or costs). The NOPR defines
wholesale stranded costs as "any legitimate, prudent and
verifiable costs incurred by a public utility or a transmitting
utility to provide service to a wholesale customer that
subsequently becomes, in whole or in part, an unbundled transmission
service customer of that public utility or transmitting utility."
The same definition applies to "retail stranded investment"
for "retail franchise customers."
For existing contracts, the NOPR proposes that a three-year
period be set during which the contracts can be negotiated to
permit recovery of stranded costs. FERC would bar recovery where
contracts already have exit fees or address stranded costs in
some other way. If the parties fail to reach agreement, the
utility may unilaterally file a stranded cost provision.
The FERC believes it to be generally inappropriate to permit
recovery of stranded costs via transmission rates and instead
prefers renegotiation of bulk (generally wholesale) power
contracts. Further, FERC has indicated a strong preference for
the costs of the transition to competition at the retail level to
be addressed by the states. The NOPR seeks comments as to
whether the FERC should allow recovery of retail stranded costs
in transmission rates under certain circumstances. The Company
has responded, with other New York State utilities, that it is
generally supportive of the FERC's findings, but believes that
the FERC must play a more active role in addressing retail
stranded cost recovery, particularly in the context of increased
municipalization activity discussed above.
PSC COMPETITIVE OPPORTUNITIES PROCEEDING - ELECTRIC. In
June 1994, the PSC instituted Phase II of its competitiveness
opportunities proceeding, the overall objective of which is "to
identify regulatory and ratemaking practices that will assist in
the transition to a more competitive electric industry designed
to increase efficiency in the provision of electricity while
maintaining safety, environmental affordability, and service
quality goals." In an order issued December 22, 1994, the PSC
released for comment a series of principles to guide the
transition to competition. The principles emphasize the
importance of the economic and environmental well-being of New
York State, which "cannot be compromised to accommodate other
principles." Other proposed principles recognize that
competition, at least at the wholesale level, will further the
economic and environmental well-being of New York State, that
"bill shock" for any class of customers should be minimized, that
the integrity, safety and reliability of the bulk (transmission
and distribution) electric system should not be jeopardized, that
the current industry structure of a vertically integrated utility
(ownership of generation, transmission and distribution
activities) is incompatible with effective wholesale or retail
competition and that utilities should have a reasonable
opportunity to recover "prudent and verifiable expenditures and
commitments made pursuant to their legal obligations, as long as
the utilities are cooperating in furthering all of the
principles." According to the order, similar cooperation by
independent power producers (IPP) should result in "respect for
the reasonable expectations of IPP investors." The PSC has
said it believes the transition to competition should balance
order, deliberation and speed. Although the focus of the
original order was on the wholesale market, the PSC concluded
that the proceeding should examine issues related to retail
competition as well. The PSC notes, in its order, that it can
only implement these principles within the context of its own
authority and that coordination across government is necessary
to avoid major dislocation among suppliers of electricity.
The Company cannot predict the timing or the results of the
proceeding.
FERC ORDER 636 AND PSC COMPETITIVE OPPORTUNITIES
PROCEEDING - GAS. Portions of the natural gas industry have
undergone significant structural changes. A major milestone in
this process occurred in November 1993 with the implementation of
FERC Order 636. FERC Order 636 requires interstate pipelines to
unbundle pipeline sales services from pipeline transportation
service. These changes enable the Company to arrange for its gas
supply directly with producers, gas marketers or pipelines, at
its discretion, as well as to arrange for transportation and gas
storage services. The flexibility provided to the Company by
these changes should enable it to protect its existing market and
still expand its core and non-core market offerings. With these
expanded opportunities come increased competition from gas
marketers and other utilities.
Similar rate initiatives on competitively priced natural gas
were addressed in a generic investigation completed by the PSC in
December 1994. The PSC order in the proceeding significantly
expands customer access to competitive gas suppliers using a
framework designed to "assure that (1) local distribution
companies (LDCs) and new entrants can compete; (2) customers
benefit from increased choices and improved performance resulting
from a more competitive industry; and (3) core customers continue
to receive quality services at affordable rates." The Company
intends to respond by proposing a comprehensive restructuring of
rates and services designed to take advantage of the
opportunities presented by this new "open" environment.
STATE ENERGY PLANNING BOARD INITIATIVES. In October 1994,
the State Energy Planning Board issued an updated New York State
Energy Plan, which called for significant reductions in state
energy taxes, called upon the New York Power Authority (NYPA) and
the state's investor-owned utilities to study the feasibility of
creating a joint entity to operate and maintain the nuclear
generating stations in the state and endorsed greater competition
in utility purchases of electricity. The report also called for
the development of a fully competitive wholesale generation
market in the state within five years and observed that if
utility generation is separated from transmission, the PSC
"should consider carefully the valuation and allocation of
utility assets in the regulated and competitive sectors." It
recommended that retail competition should occur when fair
treatment of all customer classes, competitors, energy
efficiency and renewables and capital committed in prudent response
to past government mandates is reasonably assured. The Company is
unable to predict whether or how this plan will influence regulatory
policy.
NYPA RESTRUCTURING STUDY. Also during 1994, the NYPA issued
a report to its trustees concerning a proposed restructuring
effort for the 21st century. This report stated that a major
step toward a competitive electric industry would be to separate
transmission from generation. It also stated that another
significant advance toward cutting the price of electricity would
be the creation of a single operating company for all six of New
York State's nuclear power plants. In addition, the report
recommends creation of a "New York State Electrical Thruway" that
would combine all of the State's transmission lines into one
independent entity.
The effect on the Company's financial position or results of
operations based on any or all of the above events cannot be
determined at this time.
In summary, the electric and gas utility industry is
undergoing large changes and faces an uncertain future. To
succeed, utilities must be prepared to respond quickly to change.
The Company must be successful in, among other things, helping
to bring about favorable regulatory reform to deal with such
change, managing the economic operation of its nuclear units
and addressing growing electric competition, expanded gas supply
competition, and various cost impacts, especially excess high-cost
unregulated generator power contracts and taxes. While the Company
will seek full recovery of its investment through the rate setting
process with respect to the issues described herein, a review
of political and regulatory actions during the past 15 years with
respect to industry issues and the experiences of virtually every
other industry that has gone through deregulation, indicate that
utility shareholders may ultimately bear a significant portion of
the burden of solving these problems.
COMPANY EFFORTS TO ADDRESS COMPETITIVE CHALLENGES
-------------------------------------------------
In response to these issues being faced by the Company, the
Company has considered, and is continuing to consider, various
strategies designed to enhance its competitive position and to
increase its ability to adapt to and anticipate changes in its
utility business. These strategies may include business
combinations with other companies, acquisitions of related or
unrelated businesses, and additions to or disposition of portions
of its franchised service territories. Additionally, a number of
electric utilities have recently announced consideration of plans
to organize their operations so that generation and power supply
activities are conducted by an entity within the corporate group
separate from the entity which provides transmission and
distribution services to the utility's customers. The Company is
also studying such a division of its operations, in part because
of suggestions by New York governmental officials that power
supply should be separated from transmission and distribution
functions and in part as a means of dealing with issues related
to unregulated generator contracts.
VOLUNTARY EMPLOYEE REDUCTION PROGRAM (VERP). In July 1994,
the Company announced a voluntary early retirement program and a
voluntary separation program (together the VERP) to achieve
substantial reductions in its staffing levels in an effort to
bring the Company's staffing levels and work practices more into
line with other peer group utilities and become more competitive
in its cost structure. Later, union employees approved
amendments to the current labor agreement which offered union
employees the VERP, in exchange for a negotiated package of work
rule changes.
Approximately 1,400 active employees elected to participate
in the VERP and most terminated their employment as of October
31, 1994. The number of employees electing the VERP did not meet
management's expectations, and some layoffs have and will
continue to occur in an effort to reach a level of approximately
8,750 regular employees during 1995. At December 31, 1994, the
Company had approximately 9,200 employees. The accrued cost of
the VERP is estimated at approximately $212 million. The Company
decided to reduce 1994 earnings by the cost of the VERP that is
allocable to electric customers, net of allocation to cotenant
and other ventures, or approximately $197 million ($.89 per share).
The Company deferred, for proposed recovery over a five year period
beginning in 1995, the $11 million of VERP costs allocable to
gas customers. In reaching these decisions, the Company
considered, among other things, the impact on future rates of
deferring and recovering these costs.
Most of the VERP cash cost will be provided by pension fund
assets over time, thereby limiting the immediate cash impact
to the Company. The 1995 cash impact will be approximately $20
million, primarily in the first quarter.
In a filing with the PSC on December 23, 1994, the Company
updated its rate request for 1995 to reflect the labor and labor-
related savings in operating costs as a result of the VERP. The
savings are expected to amount to nearly $100 million annually,
of which $60 million in 1995 is the labor and related savings
allocable to electric and gas expense (the remaining savings,
generally allocable to construction, should enable the Company to
achieve its construction spending plans for 1995, which have been
reduced from prior forecasts).
UNREGULATED GENERATOR INITIATIVES are discussed in a
separate section below.
TAX INITIATIVES. The Company has launched a media
initiative to inform customers of how much (approximately 16%) of
their utility bill directly pays various forms of taxes. The
Company is also working with utility and state representatives to
explain the negative impact that all taxes, including the gross
receipts tax, are having on rates and the state of the economy.
At the same time, the Company is contesting with many taxing
authorities the high real estate taxes it is assessed,
particularly compared to the taxes assessed unregulated
generators.
CUSTOMER DISCOUNTS. The Company is experiencing a loss of
industrial load across its system for a variety of reasons. In
some cases, customers have found alternative suppliers or are
generating their own power. In other cases a weakened economy
has forced customers to relocate or shut down.
As a first step in addressing the threat of further loss of
industrial load, the PSC approved a rate (referred to as SC-10)
under which the Company was allowed to negotiate individual
contracts with some of its largest industrial and commercial
customers to provide them with electricity at lower prices.
Under this rate, customers had to demonstrate that they could
generate power more economically than the Company's service.
While the SC-10 tariff has now been superseded by the SC-11
tariff described below, seventeen contracts are still in effect
and expire by early 1997. The total SC-10 discounts amounted to
$12.4 million in 1994.
In June 1994, the PSC announced the adoption of guidelines
to govern flexible electric rates offered by utilities to retain
qualified industrial customers in the face of growing competition
from unregulated generators, and requiring the Company (and other
New York utilities with flexible tariffs) to file amendments to
SC-10. On August 10, 1994, the Company filed for a new service
tariff, SC-11, for "Individually Negotiated Contract Rates." All
new contract rates will be administered under the new SC-11
service classification based on demonstrated industrial and
commercial competitive pricing situations including, but not
limited to, on-site generation, fuel switching, facility
relocation and partial plant production shifting. Contracts will
be for a term not to exceed seven years without PSC approval.
The Company expects a significant number of industrial
customers to negotiate contracts. Many of these contracts may
result in increased load which may be revenue enhancing. As of
December 31, 1994, approximately 20 customers, representing
approximately 80 MW of load, had made requests to the Company for
an SC-11 contract. The Company also offers economic development
rates, which can result in discounts for existing, as well as
new, load. In total, the Company granted $39 million in
discounts against 1994 revenues, of which it absorbed 20%
pursuant to the 1994 Settlement. Under its 1995 and multi-year
rate proposal, the Company anticipates offering approximately $30
million of discounts in excess of the approximately $42 million
expected to be reflected in rates in 1995, although no assurance
can be given as to the actual amount of discounts. The amount of
discounts given will also depend on the level of rates authorized
in the 1995 rate proceeding, and the allocation between customer
classes. The level of discounts beyond 1995 and the attendant
financial consequences will depend on a variety of factors.
The increase in the Company's rates over the past four
years, due in large part to required purchases from unregulated
generators, has made cogeneration and self-generation by many
industrial and large commercial customers more economically
feasible. The Company believes its SC-11 tariff pricing
flexibility will help prevent erosion of its customer base.
Price pressure, however, may limit the recovery of such costs
from the remainder of its customer base.
SITHE/ALCAN. In April 1994, the PSC ruled that, in the
event Sithe Independence Power Partners Inc. (Sithe) ultimately
obtained authority to sell electric power at retail, those retail
sales would be subject to a lower level of regulation than the
PSC presently imposes on the Company. Sithe, which sells
electricity to Consolidated Edison Company of New York, Inc.
and the Company on a wholesale basis from its 1,040
megawatt natural gas cogeneration plant, also provides steam to
Alcan Rolled Products (Alcan). As authorized by the PSC in
September 1994, Sithe also sells a portion of its electricity
output on a retail basis to Alcan, previously a customer of the
Company, and is authorized to sell to Liberty Paperboard
(Liberty), a potential new industrial customer. The PSC ordered
that Sithe pay the Company a fee over a period of ten years,
based upon the prices at which Sithe would sell to Alcan,
structured to produce a net present value of approximately $19.6
million. For 1995, the fee would be approximately $3.05 million.
The Company had argued for compensation, which assures discounted
rates to Alcan, with a net present value of $39 million. The PSC
did not authorize a fee in connection with Sithe's sale to Liberty.
On October 12, 1994, the Company filed an appeal in State
Supreme Court, Albany County, which states that the April 1994
PSC Order is a violation of legal procedure and precedent and
should be reversed. The Company cannot predict the outcome of
this proceeding, but will continue to press its position
vigorously. Notwithstanding the Company's strong opposition to
Sithe's ability to sell to a retail customer, and the level of
compensation involved, the decision to require compensation to
utilities for costs that would otherwise be stranded has
established a precedent in by-pass situations for some level of
recovery of the Company's investment.
ASSET MANAGEMENT STUDIES - FOSSIL. The Company continually
examines its competitive situation and future strategic
direction. Among other things, it has, and continues to, study
the economics of continued operation of its fossil-fueled
generating plants, given current forecasts of excess capacity.
Growth in unregulated generator supply sources, compliance
requirements of the Clean Air Act and low wholesale market prices
are key considerations in evaluating the Company's internal
generation needs. While the Company's coal-burning plants continue
to be cost advantageous, certain older units and certain
gas/oil-burning units are continually assessed to evaluate
their economic value and estimated remaining useful lives.
Due to projected excess capacity, the Company plans to retire
or put certain units in long-term cold standby. A total of 340 MW's
of aging coal fired capacity is to be retired by the end of 1999
and 850 MW's of oil fired capacity was placed in long-term cold
standby in 1994. The Company is also continuing to evaluate under
what circumstances the standby plant would be returned to service,
but barring unforeseen circumstances it is not likely that a
return would occur before the end of 1999. This action will
permit the reduction of operating costs and capital expenditures for
retired and standby plants. The remaining investment in these plants
of approximately $250 million at December 31, 1994 (of which
approximately $180 million relates to the facility in cold
standby) is currently being recovered in rates through
depreciation. See Note 1 of Notes to Consolidated Financial
Statements - "Exposure Draft on Impairment of Assets".
ASSET MANAGEMENT STUDIES - NINE MILE POINT NUCLEAR STATION
UNIT NO. 1 (UNIT 1). Under the terms of a previous regulatory
agreement, the Company agreed to prepare and update studies of
the advantages and disadvantages of continued operation of Unit 1
prior to the start of the then next two refueling outages. The
first report, which recommended continued operation of Unit 1
over the then next fuel cycle, was filed with the PSC in March
1990 and a second study in November 1992 indicated that the Unit
could continue to provide benefits for the term of its license if
operating costs could be reduced and generating output improved
above its then historical average.
Operating experience at Unit 1 has improved substantially since
the 1992 study. Unit 1's capacity factor has been about 94% since
its last refueling outage.
The third study was filed with the PSC on November 1, 1994.
This study agreed with the November 1992 study, confirming
continued operation over the remaining term of its license. No
further economic studies are currently required for this Unit,
although the Company continues as a matter of course to examine
the economic and strategic issues related to operation of all its
generating units.
In connection with these asset management studies, the
Company also updated its estimated costs to decommission Unit 1.
The estimate includes amounts for both radioactive and non-
radioactive dismantlement costs, as well as spent fuel storage
cost estimates until the fuel can be transferred to a permanent
federal repository. The current estimate of radioactive ($344
million) and non-radioactive ($51 million) dismantlement in 1994
dollars is approximately $395 million. Fuel storage and plant
maintenance estimates will increase the total estimated
costs to approximately $527 million (in 1994 dollars), and this
amount escalates to $1.4 billion by the time decommissioning is
completed. While these estimates have increased from previous
estimates, the delayed dismantlement approach is believed to
be the most economic. The new estimates along with increased
estimates for the decommissioning of Nine Mile Point Nuclear
Station Unit No. 2 (Unit 2), will be required to be reflected
in rates in the future. See also Notes 1 and 3 of Notes to
the Consolidated Financial Statements.
REGULATORY AGREEMENTS/PROPOSALS
-------------------------------
1995 FIVE-YEAR RATE PLAN. In February 1994, the Company
made an electric and gas rate filing, for rates to be effective
January 4, 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 included a proposal to institute a
methodology to establish rates beginning in 1996 and running
through 1999. The proposal would provide for rate indexing to an
applicable quarterly forecast of the consumer price index as
adjusted for a productivity factor. The methodology sets a price
cap, but the Company could 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 (see "Prior Regulatory Agreements" below)
and certain other 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 Company's control would be included in billing
adjustment factors 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 (see "Prior Regulatory Agreements" below),
NERAM 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 and reset base rates subject
to indexing or to seek some other form of rate relief.
Conversely, in the event earnings exceeded 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, but would also substantially
increase the risk that the Company will not earn its allowed rate
of return and that earnings would be much more volatile than in
the past. The Company believes that its proposed rate plan meets
the criteria for continued application of Statement of Financial
Accounting Standards No. 71, "Accounting for the Effects of
Certain Types of Regulation" (SFAS No. 71). Gas rate adjustments
beyond 1995 would follow traditional regulatory methodology.
In 1994, the Company agreed to extend the date by which the
PSC must rule on the Company's rate request by twelve weeks, to
March 29, 1995. The Company will absorb one-half of the costs
(the lost margin) arising because of the extension from January
4, 1995. 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. Based on its
recent updated filing described below, the Company would absorb
approximately $41 million.
On August 31, 1994, the PSC Staff, in response to the
Company's proposal, proposed an overall decrease in electric
revenues from 1994 levels of approximately $146 million,
excluding anticipated sales growth. This contrasts with the
Company's original proposed total revenue increase, excluding
sales growth, of $146 million for 1995. Because the Company's
proposed total revenue increase reflects an effective date of
March 29, 1995, while the PSC Staff's proposal is an annualized
amount, the difference between the two positions is approximately
$366 million. The more significant adjustments proposed by the
PSC Staff include disallowance of approximately $90 million in
purchased power payments made principally to unregulated
generators; additional adjustments to the 1995 unregulated
generator forecast for prices, capacity levels and in-service
dates of certain projects; reductions in operating and
maintenance expenses stemming largely from the PSC Staff's
contention that the Company's forecast was unsupported; and
assumed increases in revenues from sales to other utilities and
transmission revenues. The PSC Staff also proposes to disallow
certain unregulated generator buyout costs equal to approximately
$12 million in 1995 and to set the electric return on equity at
10.5%, as compared to the Company's request of 11%. The PSC
Staff recommends that gas revenues be reduced by $5 million in
1995, while also recommending a return on equity of 10.5% (as
opposed to the Company's request of 11.59%). The reduction from
the Company's gas proposal relates principally to lower
departmental expenses and higher expected sales in 1995.
In response to the Company's electric indexing proposal for
1996 through 1999, the PSC Staff proposed the use of a different
index based on the annual change in a national average
electricity price, elimination of all of the Company-proposed
adjustment factors outside of indexing, including those for fuel
and purchased power costs, environmental costs, nuclear
decommissioning and accounting and tax law changes, and
elimination of the minimum and maximum return on equity limit.
The PSC Staff went well beyond the Company's proposal by
recommending a "regulatory regime that accepts market based
prices for utility generation." The PSC Staff's plan would
limit, in increasing amounts, the amount of embedded generation
costs (including certain plant and unregulated generator
costs) that could be charged to customers. The reference price
each year would be based initially upon the Company's marginal
cost of generation (which is significantly below its embedded
cost) until a reliable market price becomes available. After a
10 year phase-down, the Company would only be able to charge a
market-related price for generation. The Company would be
forced to absorb the difference between its embedded costs and
what it could charge customers, regardless of whether its past
practices were prudent or even mandated by government action.
Rates with respect to the Company's costs of transmission,
distribution and customer service would continue to be based on
cost of service for 1995, but would be indexed in 1996-1999 by
the national average electricity index.
While the PSC Staff's case contains no financial modelling
of the potential consequences of its proposal on the Company,
such consequences, if the plan is adopted as proposed could be
substantial. While the PSC Staff identified a number of general
cost reduction measures intended to mitigate the financial
consequences of its proposal, the Company believes the value of
the measures is greatly overstated. The PSC Staff's plan is
based on a price ceiling rather than a cost of service theory of
ratemaking--a departure from the Company's case and all prior New
York State ratemaking principles. It in effect also proposes a
substantial but unquantified disallowance with respect to the
Company's generating plants and a similar but undifferentiated
disallowance with respect to the difference between estimated
market costs of power and the amount the Company is required, by
law and PSC mandate, to pay for unregulated generator power.
If those elements of the PSC Staff's case were to be
implemented as proposed, the Company would also be required to
discontinue the application of SFAS No. 71 and incur substantial
additional writeoffs. Such writeoffs, which would include a
substantial portion of the $1.4 billion of regulatory assets on
the Company's balance sheet as well as the disallowed plant costs
and purchased power costs described above, would arise because of
the departure from cost-based ratemaking and because they would
no longer meet the accounting criteria regarding probability of
recovery. The Company believes the financial consequences to be
of an order of magnitude that would adversely affect the
Company's financial position and results of operations, its
ability to access the capital markets on reasonable and customary
terms, its dividend paying capacity, its ability to continue to
make payments to unregulated generators and its ability to
maintain current levels of service to its customers.
Senior members of the PSC Staff and other senior public
officials in Albany have stated that the PSC trial staff's
proposal was developed independent of consultation with
Commissioners, that the trial staff functions independently of
those individuals and that the process in this proceeding is far
from complete. In the meantime, the Company is continuing to
aggressively advocate its own position.
With the December 1994 filing in which the Company proposed
to absorb certain VERP costs and reflect labor and related
savings, the Company updated its rate request and resultant total
bill impact for 1995. The Company is now requesting an increase
in 1995 electric revenues of approximately $89 million (2.8%),
which reflects the delay in implementing new rates, and an
increase in 1995 gas revenues of $20.6 million (3.4%). This
compares with the electric bill impact of approximately 4.3% and
gas revenue increase of 4.1% requested in its original filing.
The difference between the Company's most recent filing and the
PSC Staff's proposal still exceeds $300 million on an annualized
basis.
The current rate proceeding has been separated into two
distinct phases. A final PSC decision on 1995 rates is not
expected until the end of April 1995 and new electric rates would
be implemented about that time along with any final adjustments
to gas rates. A schedule for the multi-year phase of the
proceeding has not been established, but is expected to extend at
least into the summer of 1995.
On January 27, 1995, the Administrative Law Judges (ALJ)
issued a Recommended Decision with respect to the 1995 phase of
the rate proceeding. The Recommended Decision would allow the
Company to increase its electric base rates $253.8 million (7.3%)
for the 1995 rate year and $10.3 million (1.7%) for gas base
rates. The ALJ disallowed from recovery approximately $18
million of unregulated generator costs, but rejected $68 million
of disallowances associated with contracts the PSC Staff believed
should have been bought out. The existing fuel adjustment clause
mechanism would be retained, including full recovery of prudent
unregulated generator payments, until addressed in the multi-year
phase of the proceeding. A number of other adjustments to
unregulated generator purchases relate to timing of in-service
dates, generation levels and pricing, which the Company expects
will be fully considered in the fuel adjustment clause. Finally,
the ALJ stated that sufficient evidence had been produced by the
PSC Staff to warrant a prudence investigation of the Company's
unregulated generator contract practices absent a multi-year rate
plan.
The Recommended Decision reduced the level of departmental
expenses by over $50 million based on the ALJ's assessment of
lack of adequate support for the Company's rate request. The ALJ
also recommended a 1% gross margin penalty to ensure that all of
the benefits that might otherwise inure to the shareholders due
to the ALJ's perceived lack of support are captured for ratepayers.
In addition, the Recommended Decision does not reflect any of
the VERP cost savings, which could be used to further reduce the
annualized electric base rate increase by as much as $55 million,
and the gas base rate increase by $5 million, depending on whether
the Company could demonstrate that several of the ALJs'
recommendations would be duplicated by the VERP cost savings. An
11% return on equity was recommended.
If the Recommended Decision were to be adopted in its
entirety by the PSC, excluding the further reduction in base rate
relief granted for VERP cost savings, the Company expects that
1995 electric revenues would decrease by at least 1% or
approximately $28 million as compared to 1994, although on a
twelve month basis, electric revenues would increase
approximately $57 million or 1.9%. The impact on the Company's
earnings, if the Recommended Decision were to be fully adopted by
the PSC, will depend substantially on the Company's ability to
further reduce costs since little growth in sales is forecast.
Without further cost reductions, which must be judged relative to
costs under the Company's direct control, earnings for 1995 will
be considerably lower than 1994 earnings adjusted for VERP. If
the unregulated generator disallowances were adopted by the PSC,
the Company would be required to assess whether a loss associated
with these contracts, measured by the net present value of
unrecoverable costs over the remaining term of the contracts,
would be recorded in 1995. Using projections of long-run avoided
costs, the recordable loss could exceed $100 million.
While the adoption of the PSC Staff's proposals or the
Recommended Decision by the PSC would have a material adverse
impact on the Company's 1995 results of operations, the Company
is unable to predict the outcome of these proceedings, or the
possible attendant financial consequences. However, the Company
strongly believes that its unregulated generator administrative
practices were prudent and should not be disallowed, that the
Company's unregulated generator purchases are in large part the
result of government policy and should be recovered at no penalty
to the shareholders and that any transition plan to a more
competitive environment must provide for an equitable allocation
of transition costs across customer classes. In addition, the
Company believes that any transition to a more competitive rate
structure should be addressed in a generic proceeding rather than
the Company's current multi-year rate filing. The ultimate
impact on the Company's financial condition will depend on the
pace of change in the marketplace, the actions of regulators and
government in response to that change and the actions of the
Company in controlling costs and competing effectively while
remaining, in substantial part, a regulated enterprise. The
Company is unable to predict the effects of the interaction of
these factors.
PRIOR REGULATORY AGREEMENTS. The Company's results during
the past several years have been strongly influenced by several
agreements with the PSC. A brief discussion of the key terms of
certain of these agreements is provided below.
The 1991 Financial Recovery Agreement implemented the
Niagara Mohawk Electric Revenue Adjustment Mechanism (NERAM) and
the Measured Equity Return Incentive Term (MERIT).
The NERAM requires the Company to reconcile actual results
to forecast electric public sales gross margin used in
establishing rates. The NERAM produces certainty in the amount
of electric gross margin the Company will receive in a given
period to fund its operations. While reducing risk during
periods of economic uncertainty and mitigating the variable
effects of weather, the NERAM does not allow the Company to
benefit from unforeseen growth in sales. The Company's 1995 and
multi-year rate proceedings do not seek to extend the NERAM in
view of the pricing flexibility sought, although, the separation
of the 1995 phase of the case may present some opportunity to
extend this mechanism. The lack of a NERAM will inevitably
increase earnings volatility due to variations in weather and
economic conditions. In 1994, the Company deferred for recovery
$101.2 million of revenue under the NERAM mechanism for
collection in 1995 and 1996.
The MERIT program is the incentive mechanism which
originally allowed the Company to earn up to $180 million of
additional return on equity through May 31, 1994. The program
was later amended to extend the performance period through 1995
and add $10 million to the total available award. Overall goal
targets and criteria for the 1993-1995 MERIT periods are
results-oriented and are intended to measure change in key
overall performance areas. The total available award for 1994
is $34 million and $41 million in 1995. Through the 1993 MERIT
period, the Company has earned approximately $85.5 million of
the $115 million of MERIT available and presently assesses that it
earned approximately $28 million of the $34 million available for
1994.
On January 27, 1993, the PSC approved a 1993 Rate Agreement
authorizing a 3.1% increase in the Company's electric and gas
rates providing for additional annual revenues of $108.5 million
(electric $98.4 million or 3.4%; gas $10.1 million or 1.8%).
Retroactive application of the new rates to January 1, 1993 was
authorized by the PSC.
The increase reflected an allowed return on equity of 11.4%,
as compared to the 12.3% authorized for 1992. The agreement also
included extension of the NERAM through December 1993 and
provisions to defer expenses related to mitigation of unregulated
generator costs, (aggregating $50.7 million at December 31, 1993)
including contract buyout costs and certain other items.
The Company and the local unions of the International
Brotherhood of Electrical Workers, agreed on a two-year nine-
month labor contract effective June 1, 1993. The new labor
contract includes general wage increases of 4% on each June 1st
through 1995 and changes to employee benefit plans including
certain contributions by employees. Agreement was also
reached concerning several work practices which should result in
improved productivity and enhanced customer service. The PSC
approved a filing resulting from the union settlement and
authorized $8.1 million in additional revenues ($6.8 million
electric and $1.3 million gas) for 1993.
On February 2, 1994, the PSC approved an increase in gas
rates of $10.4 million or 1.7%. The gas rates became effective
as of January 1, 1994 and include for the first time a weather
normalization clause.
The PSC also approved the Company's electric supplement
agreement with the 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. The goal
of the supplement was to keep total electric bill impacts for
1994 at or below the rate of inflation. Modifications were made
to the NERAM and MERIT provisions which determine how these
amounts are to be distributed to various customer classes and
also provided for the Company to absorb 20% of margin variances
(within certain limits) originating from SC-10 rate discounts (as
described above) and certain other discount programs for
industrial customers as well as 20% of the gross margin variance
from NERAM targets for industrial customers not subject to
discounts. 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.
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.
The Company is being forced to make excess payments to
unregulated generators, in comparison with its own costs of
production, for energy and capacity it does not currently need.
The Company estimates that it made excess payments of
approximately $205 million in 1993 and approximately $364 million
in 1994 and expects to make excess payments of approximately $409
million in 1995. The Company has initiated a series of actions
to address this situation, but cannot predict the outcome.
Recent changes in state leadership may change the energy policies
of New York State. The Company will be pursuing actions to
redress inequities and reform regulatory policies that have
contributed to the Company's increasing prices.
As of December 31, 1994, 148 of these unregulated generators
with a combined capacity of 2,592 MW were on line and selling
power to the Company. Of these, 2,273 MW are considered firm
capacity (including 207 MW of unregulated generator projects on
standby). The following table illustrates the actual and
estimated growth in capacity, payments and relative magnitude of
unregulated generator purchases compared to Company requirements:
ACTUAL ESTIMATED
1991 1992 1993 1994 1995 1996 1997 1998 1999
Capacity MW's 1,027 1,549 2,253 2,273 2,403 2,403 2,403 2,413 2,413
Payments
(millions) $ 268 $ 543 $ 736 $ 960 $1,041 $1,091 $1,152 $1,213 $1,262
Percent of Total
Fuel and
Purchased Power
Costs 32% 56% 67% 73% 76% 77% 77% 78% 78%
/TABLE
By the end of 1994, the Company had virtually all
unregulated generator capacity scheduled to come into service on
line.
In order to deal with the growth of excess supply, the
Company has taken numerous actions to attempt to realign its
supply with demand. These actions include mothballing and
retirement of Company owned generating facilities (see "Asset
Management Studies - Fossil") and buyouts of unregulated
generator projects, as well as the implementation of an
aggressive wholesale marketing effort. Such actions have been
successful in bringing installed capacity reserve margins down to
levels in line with normal planning criteria. The Company is
actively pursuing other initiatives to reduce its unregulated
generator costs.
FERC PROCEEDING. On January 11, 1995, the FERC issued an
order in a case involving Connecticut Light & Power (CL&P) that the
Public Utility Regulatory Policy Act (PURPA) forbids the states
from requiring utilities to pay more than avoided cost to qualifying
facilities (QFs) for electric power. FERC, however, also ruled that
it would not invalidate any pre-existing contracts, but only would
apply its ruling prospectively or to contracts that are subject to
a pending challenge (instituted at the time of signing) by a
utility. On the same day, FERC issued an order that an ongoing
challenge by the Company to the New York law requiring utilities to
pay QFs a minimum of six cents for electric power (the "Six Cent
Law") was moot in light of amendment of that law in 1992 to prohibit
future power purchase contracts requiring the utility to pay more
than its avoided cost. This latter proceeding had been filed in
1987. In April 1988, FERC had ruled in the Company's favor, finding
that the states could not impose rates exceeding avoided cost for
purchases from QFs, but then stayed that decision in light of a
rulemaking it was instituting to address the issue. That rulemaking
was never completed.
On February 10, 1995, the Company filed a petition for rehearing
of both orders. The Company argues, among other things, that Federal
law requires that FERC apply the ruling in CL&P in all pending cases,
including its case involving the Six Cent Law, and that it is entitled
to the opportunity, either at FERC or in the courts, to demonstrate
that pre-existing power purchase contracts resulting from the Six Cent
Law should be invalidated. The Company argues further that amendment
of the Six Cent Law did not render the proceeding addressing that law
moot because the amendment has perpetuated and, in some instances,
expanded the Company's obligation to purchase power from QFs at rates
above avoided cost. The Company intends to press its rights
vigorously, but cannot predict the outcome of these proceedings.
CURTAILMENT PROCEDURES. 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. Also, the Company has
commenced settlement discussions with certain unregulated
generators regarding curtailments. On April 5, 1994, after
informing the PSC of its progress in settlement, the Company
requested the PSC to expedite the consideration of its petition.
The Company cannot predict the outcome of this action.
DEMAND FOR ADEQUATE ASSURANCE. 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 balance 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. The Company
has been sued by the owners of three unregulated generator
projects who challenge the Company's right to demand adequate
assurance.
The Company cannot predict the outcome of these federal and
state court 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.
RESULTS OF OPERATIONS
---------------------
Earnings for 1994 were $143.3 million or $1.00 per share
compared with $240.0 million or $1.71 per share in 1993 and
$219.9 million or $1.61 per share in 1992. The decline in 1994
earnings was principally due to the charge to earnings of the
cost of the VERP of $197 million ($.89 per share). NERAM
equivalent to $101.2 million ($.46 per share) was recorded in
1994 and deferred for future recovery in rates as compared to NERAM
of $65.7 million ($.31 per share) recorded in 1993. The primary
factor contributing to the increase in earnings in 1993 as
compared to 1992 was the impact of electric and gas rate
increases effective January 1, 1993 and July 1, 1992.
In 1994, the Company's earned return on common equity was
5.8%, but without the VERP charge would have been 10.7%, compared
to 10.2% in 1993 and 10.1% in 1992. The Company's return on
common equity authorized in the rate setting process for the year
ended December 31, 1994, provided an electric return on equity
cap of 11.4% and a return on equity cap for gas of 10.4%.
Factors contributing to the earnings being below authorized
levels in 1993 included lower than anticipated results from the
Company's subsidiaries, certain operating expenses which were not
included in rates and exclusion of approximately $23 million from
the Company's rate base (upon which the Company would otherwise earn
a return) as a consequence of prior year writeoffs of disallowed
Unit 2 costs.
The following discussion and analysis highlights items
having a significant effect on operations during the three-year
period ended December 31, 1994. It may not be indicative of
future operations or earnings. It also should be read in
conjunction with the Notes to Consolidated Financial Statements
and other financial and statistical information appearing
elsewhere in this report.
ELECTRIC REVENUES increased $621.7 million or 21.4% over the
three-year period. This increase results primarily from rate
increases, NERAM revenues, higher recoveries through the
operation of the fuel adjustment clause mechanism, increased
sales to other electric systems and other factors as indicated in
the table below. An increase in the base cost of fuel, (which is
included in base rates), would typically result in a
corresponding decrease in fuel and purchased power cost revenues,
thus having a revenue neutral impact. Purchased power costs,
largely from unregulated generators, have increased significantly
during this period, offsetting much of the decrease in Fuel
Adjustment Clause (FAC) revenues which would have occurred
otherwise.
Increase (decrease) from prior year
(In millions of dollars)
Electric revenues 1994 1993 1992 Total
Increase in base rates. . . . . . . . . . . . $ 36.0 $193.1 $250.6 $479.7
Fuel and purchased power cost revenues. . . . 108.3 (42.6) (6.4) 59.3
Sales to ultimate consumers . . . . . . . . . (13.6) 11.0 39.7 37.1
Sales to other electric systems . . . . . . . 62.1 11.7 (12.8) 61.0
DSM revenue . . . . . . . . . . . . . . . . . (27.7) (30.3) (24.3) (82.3)
Miscellaneous operating revenues. . . . . . . (4.6) 23.9 (11.3) 8.0
NERAM revenues. . . . . . . . . . . . . . . . 35.5 24.0 7.8 67.3
MERIT revenues. . . . . . . . . . . . . . . . 0.5 (6.0) (2.9) (8.4)
$196.5 $184.8 $240.4 $621.7
/TABLE
Although sales to ultimate customers increased slightly in
1994, this level of sales was substantially below the forecast
used in establishing rates for the year. As a result, the
Company accrued NERAM revenues of $101.2 million ($.46 per share)
during 1994 as compared to $65.7 million ($.31 per share) of
NERAM revenues in 1993. NERAM would no longer be available under
the new rate plan as originally proposed by the Company, thus
creating exposure for lost margin if sales forecasts are not met.
The sales forecast underlying the Company's 1995 rate request
reflects an increase in kwh sales of .5% over 1994 actual
results. The Company recorded $12.3 million of the 1994 MERIT
available based on management's assessment of the achievement of
objectively measured criteria.
Changes in fuel and purchased power cost revenues are
generally margin-neutral (subject to an incentive mechanism
discussed in Note 1 of Notes to Consolidated Financial
Statements), while sales to other utilities, because of
regulatory sharing mechanisms and relatively low prices due to
excess supply, generally result in low margin contribution to the
Company. Thus, fluctuations in these revenue components do not
generally have a significant impact on net operating income. The
Company has proposed certain changes in the fuel adjustment
clause in its 1995 and multi-year rate proposal (discussed above
under "1995 Five-Year Rate Plan"). Electric revenues reflect the
billing of a separate factor for DSM programs, which provide for
the recovery of program related rebate costs and a Company
incentive based on 10% of total net resource savings.
ELECTRIC KILOWATT-HOUR SALES were 41.6 billion in 1994, an
increase of 10.3% from 1993 and an increase of 13.6% over 1992.
The 1994 increase reflects increased sales to other electric
systems, while sales to ultimate consumers were generally flat.
The increase in wholesale sales reflects the increase in
purchases from unregulated generators and the increase in nuclear
production, both of which enabled the Company to make its fossil
generation available for sale. The 1993 increase reflected
increased sales to other electric systems, while sales to
ultimate customers increased slightly (See Electric and Gas
Statistics - Electric Sales). The electric margin effect of
sales in 1994 was adjusted by the NERAM except for the large
industrial customer class, within which the Company absorbed 20%
of the variance from the NERAM sales forecast. Industrial-
Special sales are New York State Power Authority allocations of
low-cost power to specified customers, from which the Company
earns a transportation charge.
Details of the changes in electric revenues and kilowatt-
hour sales by customer group are highlighted in the table below:
1994 % Increase (decrease) from prior years
% of
Electric 1994 1993 1992
Class of service Revenues Revenues Sales Revenues Sales Revenues Sales
Residential 34.9% 5.2% (0.6)% 6.9% 0.8% 11.3% 0.7%
Commercial 36.1 2.5 (2.2) 7.0 3.9 11.1 (0.5)
Industrial 16.4 4.3 5.0 (6.0) (5.2) 13.0 (1.3)
Industrial-Special 1.4 14.5 5.9 9.1 .8 11.8 1.9
Municipal service 1.4 (1.3) (2.3) .6 (3.1) 5.8 (0.4)
Total to ultimate consumers 90.2 3.9 0.8 4.3 0.5 11.4 0.0
Other electric systems 4.7 59.1 91.1 12.6 31.2 (12.1) (3.5)
Miscellaneous 5.1 8.2 - 40.6 - (29.0) -
Total 100.0% 5.9% 10.3% 5.9% 3.0% 8.3% (0.3)%
/TABLE
As indicated in the table below, internal generation from
fossil fuel sources continued to decline in 1994, principally at
the Oswego oil-fired facility and Albany gas-fired station,
corresponding to the increase in required unregulated generator
purchases. There were no nuclear refueling outages in 1994,
while both Units were refueled in 1993. Unit 1 operated at a
capacity factor of approximately 92% for 1994, while Unit 2
operated at approximately 90%. The next nuclear refueling
outages at each unit are scheduled for 1995. See Note 3 of Notes
to the Consolidated Financial Statements.
% Change from prior year
1994 1993 1992 1994 to 1993 1993 to 1992
(In millions of dollars)
Fuel for electric
generation:
GwHrs. Cost GwHrs. Cost GwHrs. Cost GwHrs. Cost GwHrs. Cost
Coal 6,783 $ 107.3 7,088 $ 113.0 8,340 $128.8 (4.3)% (5.0)% (15.0)% (12.3)%
Oil 1,245 40.9 2,177 74.2 3,372 106.6 (42.8) (44.9) (35.4) (30.4)
Natural gas 700 16.1 548 12.5 1,769 44.6 27.7 28.8 (69.0) (72.0)
Nuclear 8,327 49.5 7,303 43.3 5,031 28.9 14.0 14.3 45.2 49.8
Hydro 3,485 - 3,530 - 3,818 - (1.3) - (7.5) -
20,540 213.8 20,646 243.0 22,330 308.9 (0.5) (12.0) (7.5) (21.3)
Electricity
purchased:
Unregulated
generators 14,794 960.1 11,720 735.7 8,632 543.0 26.2 30.5 35.8 35.5
Other 10,382 140.3 9,046 118.1 8,917 115.7 14.8 18.8 1.5 2.1
25,176 1,100.4 20,766 853.8 17,549 658.7 21.2 28.9 18.3 29.6
(PAGE>
Total generated and
purchased 45,716 1,314.2 41,412 1,096.8 39,879 967.6 10.4 19.8 3.8 13.4
Fuel adjustment
clause - 12.7 - (2.2) - 6.0 - (677.3) - (136.7)
Losses/Company use 4,117 - 3,688 - 3,268 - 11.6 - 12.9 -
41,599 $1,326.9 37,724 $1,094.6 36,611 $973.6 10.3% 21.2% 3.0% 12.4%
/TABLE
Gas revenues increased $148.0 million, or 31.1%, over the
three-year period. As shown by the table below, this increase is
primarily attributable to increased sales to ultimate customers
and increased base rates and gas adjustment clause recoveries.
In 1994, spot market sales declined because the abundance and
price of spot gas made it more difficult to earn sufficient
margin on these sales. Spot market sales are generally the
higher priced gas available and sold in the wholesale market and
yield margins substantially lower than traditional sales to
ultimate customers. Rates for transported gas also yield lower
margins than gas sold directly by the Company and, therefore,
increases in the volume of gas transportation services have not
had a proportionate impact on earnings. Changes in purchased gas
adjustment clause revenues are generally margin-neutral.
Increase (decrease) from prior
year
(In millions of dollars)
Gas revenues 1994 1993 1992 Total
Increase in base rates. . . . . . . . . . . $ 7.1 $ 7.3 $ 4.7 $ 19.1
Transportation of customer-owned gas. . . . 3.5 (9.7) 6.3 0.1
Purchased gas adjustment clause revenues. . 7.7 12.2 12.5 32.4
Spot market sales . . . . . . . . . . . . . (25.4) 27.2 2.6 4.4
MERIT revenues. . . . . . . . . . . . . . . (1.3) (0.4) (0.3) (2.0)
Miscellaneous operating revenues. . . . . . 7.6 (4.6) - 3.0
Sales to ultimate consumers and other sales 23.0 15.1 52.9 91.0
$ 22.2 $ 47.1 $ 78.7 $148.0
/TABLE
GAS SALES, excluding transportation of customer-owned gas
and spot market sales, were 85.6 million dekatherms in 1994, a
2.9% increase from 1993 and an 8.1% increase from 1992 (See
Electric and Gas Statistics - Gas Sales). The increase in 1994
includes a 2.9% increase in residential sales, a 8.6% increase in
commercial sales, both of which were strongly influenced by
weather, and a 28.2% decrease in industrial sales. The gas
weather normalization clause had an effective date of February
12, 1994, was not ordered to be implemented on a retroactive
basis and, therefore, did not have a significant impact on gas
revenues. The Company has added approximately 30,000 new
customers since 1991, primarily in the residential class, an
increase of 6.2%, and expects a continued increase in new
customers in 1995. During 1993, there also was a shift from the
transportation sales class to the industrial sales class,
corresponding with the implementation of a stand-by industrial
rate.
In 1994, the Company transported 85.9 million dekatherms (a
significant increase from 1993) for customers purchasing gas
directly from producers, and expects a continued increase in such
transportation volumes in 1995, leading to a forecast increase in
total gas deliveries in 1995 of approximately 18% above 1994.
Public sales are expected to increase approximately 2%. Factors
affecting these forecasts include the economy, the relative price
differences between oil and gas in combination with the relative
availability of each fuel, the expanded number of cogeneration
projects served by the Company and increased marketing efforts.
Changes in gas revenues and dekatherm sales by customer group are
detailed in the table below:
1994 % Increase (decrease) from prior years
% of
Gas 1994 1993 1992
Class of service Revenues Revenues Sales Revenues Sales Revenues Sales
Residential 63.9% 7.5% 2.9% 4.6% 1.8% 17.0% 12.0%
Commercial 25.5 9.9 8.6 9.2 6.5 16.6 10.2
Industrial 2.4 (21.0) (28.2) 84.8 143.6 18.6 (2.2)
Total to ultimate consumers 91.8 7.1 2.9 7.4 6.4 16.9 11.1
Other gas systems 0.2 8.7 4.3 (77.5) (80.3) (32.0) (21.7)
Transportation of
customer-owned gas 6.1 10.1 26.8 (18.5) 2.9 17.2 30.0
Spot market sales 0.7 (85.3) (88.1) 1,056.1 1,053.8 - -
Miscellaneous 1.2 423.3 - (79.4) - 0.4 -
Total 100.0% 3.7% 5.4% 8.5% 12.3% 16.5% 19.5%
/TABLE
The total cost of gas purchased decreased 3.2% in 1994,
while increasing 13.6% in 1993 and 16.1% in 1992. The cost
fluctuations generally correspond to sales volume changes,
particularly in 1993, as spot market sales activity increased.
The Company sold 1.6 and 13.2 million dekatherms on the spot
market in 1994 and 1993, respectively. In 1993, this activity
accounted for two-thirds of the 1993 purchased gas expense
increase. The purchased gas cost increase associated with
purchases for ultimate consumers in 1994 resulted from a 1.5%
increase in dekatherms purchased, coupled with a .9% increase in
rates charged by suppliers and an increase of $6.4 million in
purchased gas costs and certain other items recognized and
recovered through the purchased gas adjustment clause. Gas
purchased for spot market sales decreased $24.4 million in 1994
and increased $25.8 million in 1993. The purchased gas cost
increase associated with purchases for ultimate consumers in 1993
resulted from a 8.7% increase in dekatherms purchased, combined
with a 2.1% increase in rates charged by suppliers, offset by a
$17.8 million decrease in purchased gas costs and certain other
items recognized and recovered through the purchased gas
adjustment clause. The Company's net cost per dekatherm
purchased for sales to ultimate consumers increased to $3.44 in
1994 from $3.34 in 1993 and was $3.47 in 1992.
Through the electric and purchased gas adjustment clauses,
costs of fuel, purchased power and gas purchased, above or below
the levels allowed in approved rate schedules, are billed or
credited to customers. The Company's electric fuel adjustment
clause provides for partial pass-through of fuel and purchased
power cost fluctuations from those forecast in rate proceedings,
with the Company absorbing a portion of increases or retaining a
portion of decreases to a maximum of $15 million per rate year.
While the amounts absorbed in 1992 and 1993 were not material,
the Company retained the maximum benefit of $15 million in 1994.
OTHER OPERATION EXPENSE decreased in 1994 by 8.1%, as
compared to increases of 9.8% in 1993 and 5.9% in 1992. The 1994
decrease relates primarily to decreases in nuclear costs
associated with the Unit 1 and Unit 2 refueling outages in 1993
($27 million) and the decrease in amortization of regulatory
deferrals ($49 million) which expired in 1993. The 1993 increase
is due to an increase in DSM program expenses, nuclear expenses
related to increased production along with refueling outages at
Unit 1 and Unit 2, amortization of regulatory assets deferred in
prior years, increased recognition of other post-retirement
benefit costs and inflation.
MAINTENANCE EXPENSE decreased 14.2% in 1994 as compared to
an increase of 4.5% in 1993, principally due to nuclear expenses
incurred during the 1993 refueling outages at Unit 1 and Unit 2
($19 million).
DEPRECIATION AND AMORTIZATION expense for 1994 and 1993
increased 11.5% and 0.9%, respectively. The increase is
attributable to the completion of required improvements to plant
into service during late 1993 and early 1994.
NET FEDERAL AND FOREIGN INCOME TAXES for 1994 decreased due
to lower pre-tax income. In 1993 the decrease was due to the tax
benefit derived from the Company's Canadian subsidiary upon the
sale of its oil and gas investments. The increase in OTHER TAXES
in the three-year period is due principally to higher revenue-
based taxes ($36 million), combined with higher property taxes
($28 million).
OTHER ITEMS, NET, excluding Federal income taxes and
allowance for funds used during construction (AFC), increased
$8.0 million in 1994 and increased $23.4 million in 1993. The
1994 increase primarily related to increased earnings of
subsidiaries which included a nonrecurring gain on
the sale of an investment for $9 million. The 1993 increase was
the effect of the recording in 1992 of a $45 million reserve
against the carrying value of Canadian subsidiary oil and gas
reserves. The sale of the Company's subsidiary, HYDRA-CO
Enterprises, Inc. (HYDRA-CO), will be recorded in the first
quarter of 1995 as the sale was completed in January 1995 and did
not affect 1994 earnings. HYDRA-CO's earnings for the three
years ended December 31, 1994 were not material.
Net INTEREST CHARGES decreased $5.5 million in 1994 and $9.3
million in 1993, as the result of the First Mortgage Bond
refinancing program that began in 1992 and based on existing
market conditions is now complete. Dividends on preferred stock
increased $1.8 million in 1994 due to the issuance of $150 million
of preferred stock in August 1994, while decreasing $4.7 million
and $3.9 million in 1993 and 1992, respectively, because of
reductions in the average amounts of stock outstanding. The
weighted average long-term debt interest rate and preferred
dividend rate paid, reflecting the actual cost of variable rate
issues, changed to 7.79% and 6.84%, respectively, in 1994, from
7.97% and 6.70%, respectively, in 1993, and from 8.29% and 7.04%,
respectively, in 1992.
EFFECTS OF CHANGING PRICES
--------------------------
The Company is especially sensitive to inflation because of
the amount of capital it typically needs and because its prices
are regulated using a rate base methodology that reflects the
historical cost of utility plant.
The Company's consolidated financial statements are based on
historical events and transactions when the purchasing power of
the dollar was substantially different from the present. The
effects of inflation on most utilities, including the Company,
are most significant in the areas of depreciation and utility
plant. The Company could not replace its utility plant and
equipment for the historical cost value at which they are
recorded on the Company's books. In addition, the Company would
not replace these assets with identical ones due to technological
advances and competitive and regulatory changes that have occurred.
In light of these considerations, the depreciation charges in
operating expenses do not reflect the current cost of providing
service. The Company will seek additional revenue or
reallocate resources, if possible, to cover the costs of
maintaining service as assets are replaced or retired.
FINANCIAL POSITION, LIQUIDITY AND CAPITAL RESOURCES
---------------------------------------------------
FINANCIAL POSITION
------------------
The Company's capital structure at December 31, 1994 was
52.3% long-term debt, 8.7% preferred stock and 39.0% common
equity, as compared to 54.6%, 6.5% and 38.9%, respectively, at
December 31, 1993. Book value of the common stock was $17.06 per
share at December 31, 1994, as compared to $17.25 per share at
December 31, 1993, reflecting the charge to earnings of the VERP
and the payment of dividends in 1994. Market analysts have
observed that the Company's low market to book ratio, 83.5% at
December 31, 1994, stems from the adverse effects of New York
State's economy and regulatory attitudes, as well as
uncertainties about the pace of regulatory change, which could
result in increased competition and reduced prices. These
adverse effects and uncertainties, coupled with high embedded
costs of the Company due principally to unregulated generators
and taxes, may make the Company more vulnerable than some other
traditional utilities.
The 1994 ratio of earnings to fixed charges was 1.91.
Without the VERP charge, the ratio would have been 2.54. The
ratios of earnings to fixed charges for 1993 and 1992 were 2.31
and 2.24, respectively.
Firms which publish securities ratings have begun to impute
certain items into the Company's interest coverage calculations
and capital structure, the most significant of which is the
inclusion of a "leverage" factor for unregulated generator
contracts. These firms believe that the financial structure of
the unregulated generators (which typically have very high debt-
to-equity ratios) and the character of their power purchase
agreements increase the financial risk of utilities. The
Company's reported interest coverage and debt-to-equity ratios
have recently been discounted by varying amounts for purposes of
establishing credit ratings. Because of existing commitments for
unregulated generator purchases, the imputation has had and will
continue to have a materially negative impact on the Company's
financial ratings.
At present, sales of preferred stock are not possible and
sales of common stock, which would cause substantial dilution to
current shareholders, are financially inadvisable.
CONSTRUCTION AND OTHER CAPITAL REQUIREMENTS
-------------------------------------------
The Company's total capital requirements consist of amounts
for the Company's construction program, working capital needs,
maturing debt issues and sinking fund provisions on preferred
stock. Annual expenditures for the years 1992 to 1994 for
construction and nuclear fuel, including related AFC and
overheads capitalized, were $502.2 million, $519.6 million and
$490.1 million, respectively.
The 1995 estimate for construction additions, including
overheads capitalized, nuclear fuel and AFC, is approximately
$380 million, and is expected to be funded by cash provided from
operations. Mandatory debt and preferred stock retirements and
other requirements are expected to add approximately another $77
million (expected to be refinanced from external sources) to the
Company's capital requirements, for a total of $ 457 million.
Current estimates of total capital requirements for the years
1996 to 1999 are $475, $408, $480 and $566 million, respectively,
of which $406, $358, $410 and $358 million relates to expected
construction additions. The estimate of construction additions
included in capital requirements for the period 1996 to 1999 will
be reviewed by management during 1995 with the objective of
further reducing these amounts where possible.
The provisions of the Clean Air Act Amendments of 1990
(Clean Air Act) are expected to have an impact on the Company's
fossil generation plants during the period through 2000 and
beyond. The Company has evaluated options for compliance with
Phase I of the Clean Air Act, which becomes effective on May 31,
1995 and continues through 1999. The Company spent approximately
$32 and $19 million in 1994 and 1993, respectively, and has
included $6 million for Phase I in its construction forecast for
1995 through 1999 to make combustion modifications at its fossil
fired plants, including the installation of low NOx burners at
the Dunkirk and Huntley plants. With respect to Phase II,
preliminary estimates for compliance anticipate approximately $17
million in capital costs. The Company anticipates that
additional expenditures of approximately $70 million may be
necessary for Phase III to be incurred beyond 2000. The asset
management studies, described above, include Phase I, II and III
estimates for Clean Air Act compliance.
LIQUIDITY AND CAPITAL RESOURCES
-------------------------------
Cash flows to meet the Company's requirements for operating,
investing and financing activities during the past three years
are reported in the Consolidated Statements of Cash Flows.
During 1994, the Company raised approximately $652.9 million
from external sources, consisting of $325.7 million of First
Mortgage Bonds, $150 million of Preferred Stock, $29.5 million of
common stock and a net increase of $147.7 million of short and
intermediate term debt. The proceeds of the $325.7 million of
First Mortgage Bonds were used to provide for the early
redemption of approximately $315.7 million of higher coupon First
Mortgage Bonds. The Company also retired $190 million of First
Mortgage Bonds that matured during 1994.
During January 1995, the Company completed the sale of its
wholly-owned subsidiary, HYDRA-CO. Enterprises, Inc. Net cash
proceeds of approximately $200 million were used to reduce short-
term debt which aggregated over $400 million at December 31,
1994.
External financing for 1995 is projected to consist of $400
to $600 million of First Mortgage Bonds depending upon the final
outcome of the current rate proceeding discussed above. The
Company's ability to issue more common stock to improve its
capital structure is limited by the uncertainties that have
depressed the stock's price. The Company would not likely pursue
a new issue offering unless the common stock price was closer to
book value.
Depending on the outcome of the multi-year rate case
discussed above, cash provided by operations is generally
expected to provide sufficient funds for the Company's
anticipated construction program for 1996 to 1999. External
financing plans are subject to periodic revision as underlying
assumptions are changed to reflect developments, most importantly
in its rate proceedings. The ultimate level of financing during
this four year period will reflect, among other things, the
extent and timing of rate relief, the Company's competitive
positioning and the extent to which competition penetrates the
Company's markets, uncertain energy demand due to economic
conditions and capital expenditures relating to distribution and
transmission load reliability projects, as well as continued
expansion of the gas business. Environmental standards compliance
costs, the effects of rate regulation and various regulatory
initiatives, the level of internally generated funds and
dividend payments, the availability and cost of capital and
the ability of the Company to meet its interest and preferred
stock dividend coverage requirements, to satisfy legal
requirements and restrictions in governing instruments and to
maintain an adequate credit rating, also will impact the amount
and type of future external financing.
The Company has initiated a ten to fifteen year site
investigation and remediation program that seeks a) to identify
and remedy environmental contamination hazards in a proactive and
cost-effective manner and b) to ensure financial participation by
other responsible parties. The Company is currently aware of 89
sites with which it has been or may be associated, including 47
which are Company-owned. With respect to non-owned sites, the
Company may be required to contribute some proportionate share of
remedial costs.
The Company has accrued a minimum liability of $240 million
at December 31, 1994 for its estimated liability for
investigation and remediation of certain Company-owned and
Company-associated hazardous waste sites, which represents the low
end of a range of estimates developed from the Company's ongoing
site investigation and remediation program. The potential high
end of the range is presently estimated at approximately
$1 billion, including approximately $500 million in the unlikely
event the Company were required to assume 100% responsibility at
non-owned sites.
The Company believes that costs incurred in the
investigation and remediation process are recoverable in the
ratesetting process as currently in effect. See Note 9 of Notes
to Consolidated Financial Statements - "Environmental
Contingencies". Rate agreements since 1991 have included a
recovery mechanism and an annual allowance for costs expected to
be incurred for waste site investigation and remediation. The
recovery mechanism provides that expenditures over or under the
allowance be deferred for future rate consideration. The Company
does not expect these costs to impact external financing,
although any such impact is dependent upon the timing of
expenditures and associated recovery.
The Nuclear Regulatory Commission (NRC) requires owners of
nuclear power plants to place funds associated with
decommissioning activities for contaminated portions of nuclear
facilities into an external trust. Further, the NRC established
guidelines for determining minimum amounts that must be available
in the trust for these specified decommissioning activities at
the time of decommissioning. Applying the NRC guidelines, the
Company has estimated that the minimum requirements for Unit 1
and its share of Unit 2, respectively, will be $381 million and
$173 million in 1994 dollars. The Company is seeking an increase
in its rate allowance for Unit 1 and Unit 2 decommissioning in
its rate case for 1995 to reflect new NRC minimum requirements.
Amounts collected for the NRC minimum are being placed in an
external trust. See Note 3 of Notes to Consolidated Financial
Statements - "Nuclear Plant Decommissioning".
The Company believes that traditionally available sources of
financing should be sufficient to satisfy the Company's external
financing needs during the period 1995 through 1999. As of
December 31, 1994, the Company could issue an additional $2,351
million aggregate principal amount of First Mortgage Bonds. This
includes approximately $1,311 million from retired bonds without
regard to an interest coverage test and approximately $1,040
million supported by additional property currently certified and
available, assuming a 10% interest rate, under the applicable
tests set forth in the Company's mortgage trust indenture. The
Company also has $200 million of Preference Stock authorized for
sale. The Company will continue to explore and use, as
appropriate, other methods of raising funds.
Ordinarily, construction related short-term borrowings are
refunded with long-term securities on a regular basis. This
approach generally results in the Company showing a working
capital deficit. Working capital deficits also may be
temporarily created because 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.
The Company's accounts receivable increased 23% over 1993,
due primarily to the effects of economic conditions in the Company's
service territory. A focus of the Company's new centralized
collections function will be to improve receivable collections
in 1995.
The Company has had sufficient borrowing capacity to fund
such a working capital deficit as necessary. Bank credit
arrangements which, at December 31, 1994, totaled $580 million
are used by the Company to enhance flexibility as to the
type and timing of its long-term security sales. Of the $580
million total available, $200 million is represented by a
Revolving Credit Agreement which expires in 1997. The remainder
of the arrangements are subject to review by the lenders on an
ongoing basis with interest rates negotiated at the time of use.
In 1994, the Company also obtained $161 million in bank loans,
which will expire in 1995 and which the Company expects to renew.
The Company's charter restricts the amount of unsecured
indebtedness that may be incurred by the Company to 10% of
consolidated capitalization plus $50 million. The Company has
not reached this restrictive limit.
The Company's securities ratings at December 31, 1994, were:
SECURED PREFERRED COMMERCIAL
DEBT STOCK PAPER
Standard & Poors Corporation *BBB- BB+ A-3
Moody's Investors Service Baa2 *baa3 P-2
Duff & Phelps BBB *BBB- Not applicable
Fitch Investors Service BBB *BBB- Not applicable
* Lowest investment grade rating
As described further below, the security ratings set forth
above are subject to revision and/or withdrawal at any time by
the respective rating organizations and should not be considered
a recommendation to buy, sell or hold securities of the Company.
The Company's costs of financing and access to markets have
been and could be further negatively affected by events outside
its control. The Company's securities ratings could be
negatively affected by, among other things, the Company's
obligations to purchase power from unregulated generators.
Rating agencies have expressed concern about the impact on
Company financial indicators and risk that unregulated generator
financial leveraging may have. The Company's securities ratings
and the terms of its access to capital markets could also be
negatively impacted by adverse outcomes in the 1995 and multi-
year rate proceedings or rapid penetration of competition in the
Company's service territory.
In September 1994, Moody's Investors Service placed the
credit ratings of the Company under review for possible
downgrade. The review was prompted by both the PSC's September
1994 decision on Sithe/Alcan and the August 1994 proposal from
the PSC Staff to reduce the Company's electric and gas rates
over the next five years.
Also in September 1994, Standard and Poor's (S&P) placed its
ratings on the Company, Con Edison and Long Island Lighting
Company on credit watch with negative implications. This action
by S&P reflected continued concern about a shift in the
regulatory environment in New York State that would be even more
hostile to the financial health of the state's utilities. If any
rating agency lowers the Company's securities rating,
particularly to below investment grade, such action could
increase the cost to issue new securities, and/or limit the
Company's flexibility.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
A. Financial Statements
Report of Management
Report of Independent Accountants
Consolidated Statements of Income and Retained Earnings for
each of the three years in the period ended December 31, 1994.
Consolidated Balance sheets at December 31, 1994 and 1993.
Consolidated Statement of Cash Flows for each of the three years
in the period ended December 31, 1994.
Notes to Consolidated Financial Statements.
Financial Statement Schedules -
The following Financial Statement Schedule is submitted as part
of Item 14, Exhibits, Financial Statement Schedules, and Reports
on Form 8-K, of this Report. (All other Financial Statement
Schedules are omitted because they are not applicable, or
the required information appears in the Financial Statements
or the Notes thereto.
Schedule II - Valuation and Qualifying Accounts and Reserves
REPORT OF MANAGEMENT
--------------------
The consolidated financial statements of Niagara Mohawk Power
Corporation and its subsidiaries were prepared by and are the
responsibility of management. Financial information contained
elsewhere in this Annual Report is consistent with that in the
financial statements.
To meet its responsibilities with respect to financial
information, management maintains and enforces a system of
internal accounting controls, which is designed to provide
reasonable assurance, on a cost effective basis, as to the
integrity, objectivity and reliability of the financial records
and protection of assets. This system includes communication
through written policies and procedures, an organizational
structure that provides for appropriate division of
responsibility and the training of personnel. This system is
also tested by a comprehensive internal audit program. In
addition, the Company has a Corporate Policy Register and a Code
of Business Conduct which supply employees with a framework
describing and defining the Company's overall approach to
business and requires all employees to maintain the highest level
of ethical standards as well as requiring all management
employees to formally affirm their compliance with the Code.
The financial statements have been audited by Price
Waterhouse LLP, the Company's independent accountants, in
accordance with generally accepted auditing standards. In
planning and performing their audit, Price Waterhouse considered
the Company's internal control structure in order to determine
auditing procedures for the purpose of expressing an opinion on
the financial statements, and not to provide assurance on the
internal control structure. The independent accountants' audit
does not limit in any way management's responsibility for the
fair presentation of the financial statements and all other
information, whether audited or unaudited, in this Annual Report.
The Audit Committee of the Board of Directors, consisting of five
outside directors who are not employees, meets regularly with
management, internal auditors and Price Waterhouse to review and
discuss internal accounting controls, audit examinations and
financial reporting matters. Price Waterhouse and the Company's
internal auditors have free access to meet individually with the
Audit Committee at any time, without management being present.
REPORT OF INDEPENDENT ACCOUNTANTS
---------------------------------
To the Stockholders and
Board of Directors of
Niagara Mohawk Power Corporation
In our opinion, the accompanying consolidated balance sheets and
the related consolidated statements of income and retained
earnings and of cash flows present fairly, in all material
respects, the financial position of Niagara Mohawk Power
Corporation and its subsidiaries at December 31, 1994 and 1993,
and the results of their operations and their cash flows for each
of the three years in the period ended December 31, 1994, in
conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's
management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our
audits of these statements in accordance with generally accepted
auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting
principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the
opinion expressed above.
As discussed in Note 9, the Company is a defendant in lawsuits
relating to its actions with respect to certain purchased power
contracts. Management is unable to predict whether the
resolution of these matters will have a material effect on its
financial position or results of operations. Accordingly, no
provision for any liability that may result upon resolution of
this uncertainty has been made in the accompanying 1994 and 1993
financial statements.
As discussed in Note 2, certain representatives of the New York
Public Service Commission have proposed: i) a plan to establish
the Company's rates for its electric business based on a
transition plan to market-based prices rather than based on the
Company's costs and ii) disallowance of certain costs with
respect to unregulated generator contracts. If these proposals
or certain provisions thereof are implemented as proposed, the
Company would be required to writedown certain assets, recognize
a loss on uneconomic unregulated generator contracts and/or
discontinue the application of Statement of Financial Accounting
Standards No. 71, "Accounting for the Effects of Certain Types of
Regulation" (SFAS No. 71), with respect to portions of the
Company's business. Such writedowns or losses could have a
material adverse effect on the Company's financial position and
results of operations. Because the outcome of these matters
cannot be predicted, the accompanying financial statements do not
include any adjustments that might result from the resolution of
these proceedings.
/s/ Price Waterhouse LLP
------------------------
Syracuse, New York
February 1, 1995
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
---------------------------------------------------------
Consolidated Statements of Income and Retained Earnings
-------------------------------------------------------
In thousands of dollars
For the year ended December 31, 1994 1993 1992
Operating revenues:
Electric $3,528,987 $3,332,464 $3,147,676
Gas 623,191 600,967 553,851
4,152,178 3,933,431 3,701,527
Operating expenses:
Operation:
Fuel for electric generation 219,849 231,064 323,200
Electricity purchased 1,107,133 863,513 650,379
Gas purchased 315,714 326,273 287,316
Other operation expenses 754,695 821,247 748,023
Employee reduction program 196,625 - -
Maintenance 202,682 236,333 226,127
Depreciation and amortization 308,351 276,623 274,090
(Note 1)
Federal and foreign income 117,834 162,515 183,233
taxes (Note 7)
Other taxes 496,922 491,363 484,833
3,719,805 3,408,931 3,177,201
Operating income 432,373 524,500 524,326
Other income and deductions:
Allowance for other funds used
during construction 2,159 7,119 9,648
(Note 1)
Federal and foreign income 27,729
taxes (Note 7) 6,365 15,440
Other items (net) 15,045 7,035 (16,338)
23,569 29,594 21,039
Income before interest charges 455,942 554,094 545,365
Interest charges:
Interest on long-term debt 264,891 279,902 290,734
Other interest 20,987 11,474 9,982
Allowance for borrowed funds
used during construction (6,920) (9,113) (11,783)
278,958 282,263 288,933
Net income 176,984 271,831 256,432
Dividends on preferred stock 33,673 31,857 36,312
Balance available for common 143,311 239,974 219,920
stock
Dividends on common stock 156,060 133,908 103,784
(12,749) 106,066 116,136
Retained earnings at beginning $ 551,332 $ 445,266 $ 329,130
of year
Retained earnings at end of 538,583 551,332 445,266
year
Average number of shares of
common stock outstanding 143,261 140,417 136,570
(in thousands)
Balance available per average $ 1.00 $ 1.71 $ 1.61
share of common stock
Dividends paid per share $ 1.09 $ .95 $ .76
() Denotes deduction
/TABLE
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
---------------------------------------------------------
CONSOLIDATED BALANCE SHEETS
--------------------------- In thousands of dollars
At December 31, 1994 1993
ASSETS
Utility plant (Note 1):
Electric plant $ 8,285,263 $ 7,991,346
Nuclear fuel 504,320 458,186
Gas plant 922,459 845,299
Common plant 291,962 244,294
Construction work in progress 481,335 569,404
Total utility plant 10,485,339 10,108,529
Less: Accumulated depreciation and 3,449,696 3,231,237
amortization
Net utility plant 7,035,643 6,877,292
Other property and investments 224,039 209,051
Current assets:
Cash, including temporary cash
investments of $50,052 and $100,182,
respectively 94,330 124,351
Accounts receivable (less allowance
for doubtful accounts of $3,600) 317,282 258,137
(Note 9)
Unbilled revenues (Note 1) 196,700 197,200
Electric margin recoverable 66,796 21,368
Materials and supplies, at average
cost:
Coal and oil for production of 31,652 29,469
electricity
Gas storage 30,931 31,689
Other 150,186 163,044
Prepayments:
Taxes 43,249 23,879
Pension expense (Note 8) - 37,238
Other 45,189 34,382
Regulatory and other assets (Note 2):
Unamortized debt expense 153,047 154,210
Deferred recoverable energy costs 62,884 67,632
Deferred finance charges 239,880 239,880
Income taxes recoverable 465,109 558,771
Recoverable environmental restoration 240,000 240,000
costs (Note 9)
Other 252,522 203,734
1,413,442 1,464,227
$ 9,649,439 $9,471,327
/TABLE
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
---------------------------------------------------------
CONSOLIDATED BALANCE SHEETS In thousands of dollars
---------------------------
At December 31, 1994 1993
CAPITALIZATION AND LIABILITIES
Capitalization (Note 5):
Common stockholders' equity:
Common stock, issued 144,311,466
and 142,427,057 shares,
respectively $ 144,311 $ 142,427
Capital stock premium and expense 1,779,504 1,762,706
Retained earnings 538,583 551,332
2,462,398 2,456,465
Non-redeemable preferred stock 290,000 290,000
Mandatorily redeemable preferred stock 256,000 123,200
Long-term debt 3,297,874 3,258,612
Total capitalization 6,306,272 6,128,277
Current liabilities:
Short-term debt (Note 6) 416,750 368,016
Long-term debt due within one year (Note 5) 77,971 216,185
Sinking fund requirements on redeemable preferred 10,950 27,200
stock (Note 5)
Accounts payable 277,782 299,209
Payable on outstanding bank checks 64,133 5,284
Customers' deposits 14,562 14,072
Accrued taxes 43,358 56,382
Accrued interest 63,639 70,529
Accrued vacation pay 36,550 40,178
Other 77,818 39,565
1,083,513 1,166,620
Regulatory and other liabilities:
Accumulated deferred income taxes (Notes 1 and 7). 1,258,463 1,344,259
Deferred finance charges (Note 2) 239,880 239,880
Employee pension and other benefits (Note 8) 235,741 35,507
Unbilled revenues (Note 1) 93,668 94,968
Deferred pension settlement gain 50,261 62,282
Other 141,641 159,534
2,019,654 1,936,430
Commitments and contingencies (Notes 2 and 9):
Liability for environmental restoration 240,000 240,000
$9,649,439 $9,471,327
/TABLE
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
---------------------------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
Increase (Decrease) in Cash
In thousands of dollars
For the year ended December 31, 1994 1993 1992
Cash flows from operating activities:
Net income $176,984 $271,831 $256,432
Adjustments to reconcile net income to net
cash provided by operating activities:
Amortization of nuclear replacement
power cost disallowance. (23,081) (23,720) (39,547)
Depreciation and amortization 308,351 276,623 274,090
Amortization of nuclear fuel 37,887 35,971 26,159
Provision for deferred income taxes 7,866 30,067 55,929
Electric margin recoverable (45,428) (9,773) 3,670
Employee reduction program 196,625 - -
Allowance for other funds used during
construction (2,159) (7,119) (9,648)
Deferred recoverable energy costs 4,748 (5,688) (14,329)
(Gain) loss on investments - net - (5,490) 44,296
Deferred operating expenses - 15,746 20,257
Increase in net accounts receivable (59,145) (36,972) (44,969)
(Increase) decrease in materials and supplies 6,290 43,581 (28,293)
Increase (decrease) in accounts payable and
accrued expenses (5,991) 15,716 31,025
Increase (decrease) in accrued interest and
taxes (19,914) 3,996 10,133
Changes in other assets and liabilities 14,188 10,624 39,565
Net cash provided by operating activities 597,221 615,393 624,770
Cash flows from investing activities:
Construction additions (439,289) (506,267) (452,497)
Nuclear fuel (46,134) (12,296) (37,247)
Less: Allowance for other funds used
during construction 2,159 7,119 9,648
Acquisition of utility plant (483,264) (511,444) (480,096)
(Increase) decrease in materials and
supplies related to construction 5,143 3,837 (7,359)
Increase (decrease) in accounts payable
and accrued expenses related to
construction (1,498) 3,929 7,756
Increase in other investments (23,375) (26,774) (11,615)
Proceeds from sale of subsidiary - 95,408 -
Other (17,979) (15,260) (31,588)
Net cash used in investing activities (520,973) (450,304) (522,902)
Cash flows from financing activities:
Proceeds from sale of common stock 29,514 116,764 13,340
Proceeds from long-term debt 424,705 635,000 835,000
Issuance of preferred stock 150,000 - -
Redemption of preferred stock (33,450) (47,200) (41,950)
Reductions of long-term debt (526,584) (641,990) (796,795)
Net change in short-term debt 48,734 50,318 90,130
Dividends paid (189,733) (165,765) (140,296)
Other (9,455) (31,759) (44,781)
Net cash used in financing activities (106,269) (84,632) (85,352)
Net increase (decrease) in cash (30,021) 80,457 16,516
Cash at beginning of year 124,351 43,894 27,378
Cash at end of year $94,330 $ 124,351 $43,894
Supplemental disclosures of cash flow
information:
Cash paid during the year for:
Interest $ 300,242 $ 300,791 $323,972
Income taxes 136,876 106,202 76,519
Supplemental schedule of noncash investing and
financing activities:
Liability for environmental restoration - 25,000 15,000
/TABLE
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The Company is subject to regulation by the PSC and FERC
with respect to its rates for service under a methodology which
establishes prices based on the Company's cost. The Company's
accounting policies conform to generally accepted accounting
principles, as applied to regulated public utilities, and are in
accordance with the accounting requirements and ratemaking
practices of the regulatory authorities. See "Exposure Draft on
Impairment of Assets" below and Note 2 - Rate and Regulatory
Issues and Contingencies.
PRINCIPLES OF CONSOLIDATION: The consolidated financial
statements include the Company and its wholly-owned subsidiaries.
Intercompany balances and transactions have been eliminated.
UTILITY PLANT: The cost of additions to utility plant and of
replacements of retirement units of property is capitalized.
Cost includes direct material, labor, overhead and allowance for
funds used during construction (AFC). Replacement of minor items
of utility plant and the cost of current repairs and maintenance
is charged to expense. Whenever utility plant is retired, its
original cost, together with the cost of removal, less salvage,
is charged to accumulated depreciation.
ALLOWANCE FOR FUNDS USED DURING CONSTRUCTION: The Company
capitalizes AFC in amounts equivalent to the cost of funds
devoted to plant under construction. AFC rates are determined in
accordance with FERC and PSC regulations. The AFC rate in effect
at December 31, 1994 was 5.75%. AFC is segregated into its two
components, borrowed funds and other funds, and is reflected in
the Interest charges and the Other income and deductions
sections, respectively, of the Consolidated Statements of Income.
DEPRECIATION, AMORTIZATION AND NUCLEAR GENERATING PLANT
DECOMMISSIONING COSTS: For accounting and regulatory purposes,
depreciation is computed on the straight-line basis using the
remaining service lives for nuclear and hydro classes of
depreciable property and the average service lives for all other
classes. The percentage relationship between the total provision
for depreciation and average depreciable property was 3.3% for
1994, 3.2% for 1993 and 3.3% for 1992. The Company performs
depreciation studies to determine service lives of classes of
property and adjusts the depreciation rates periodically.
Estimated decommissioning costs (costs to remove a nuclear
plant from service in the future) for the Company's Unit 1 and
its share of Unit 2 are being accrued over the service lives of
the units, recovered in rates through an annual allowance and
currently charged to operations through depreciation. The
Company expects to commence decommissioning of both units shortly
after cessation of operations at Unit 2 (currently planned for
2026), using a method which removes or decontaminates Unit
components promptly at that time. See Note 3 - "Nuclear Plant
Decommissioning".
The Financial Accounting Standards Board (FASB) has added to
its agenda a project on accounting for obligations for
decommissioning of nuclear power plants. The objective of the
FASB's project is to determine when a liability for nuclear
decommissioning should be recognized, how any such liability
should be measured, and whether a corresponding asset is created.
If current electric utility industry accounting practices for
such decommissioning are changed, the Company may be required to
record the estimated cost for decommissioning as a liability
rather than as accumulated depreciation, establish a regulatory
asset for the difference between the amount accrued to date and
the total estimated decommissioning liability and report income
from the external decommissioning trusts as investment income
rather than as a reduction to decommissioning expense. The
annual provisions for decommissioning could increase. The
Company does not believe that such changes, if required, would
have an adverse effect on results of operations due to the
Company's belief that decommissioning costs will continue to be
recovered in rates (see "Exposure Draft on Impairment of Assets",
below).
Amortization of the cost of nuclear fuel is determined on
the basis of the quantity of heat produced for the generation of
electric energy. The cost of disposal of nuclear fuel, which
presently is $.001 per kilowatt-hour of net generation available
for sale, is based upon a contract with the U.S. Department of
Energy. These costs are charged to operating expense and
recovered from customers through base rates or through the fuel
adjustment clause.
REVENUES: Revenues are based on cycle billings rendered to
certain customers monthly and others bi-monthly. Although the
Company commenced the practice in 1988 of accruing electric
revenues for energy consumed and not billed at the end of the
fiscal year, the impact of such accruals has not yet been fully
recognized in the Company's results of operations because of
regulatory requirements. At December 31, 1994 and 1993,
approximately $71.8 million and $74.1 million, respectively, of
unbilled electric revenues remained unrecognized in results of
operations, are included in Deferred Credits and may be used to
reduce future revenue requirements. At December 31, 1994 and
1993, the Company accrued $21.9 and $20.9 million, respectively,
of unbilled gas revenues which remain unrecognized in results
of operations and will similarly be used to reduce future gas
revenue requirements.
The Company's tariffs include electric and gas adjustment
clauses under which energy and purchased gas costs, respectively,
above or below the levels allowed in approved rate schedules, are
billed or credited to customers. The Company, as authorized by
the PSC, charges operations for energy and purchased gas cost
increases in the period of recovery. The PSC has periodically
authorized the Company to make changes in the level of allowed
energy and purchased gas costs included in approved rate
schedules. As a result of such periodic changes, a portion of
energy costs deferred at the time of change would not be
recovered or may be overrecovered under the normal operation of
the electric and gas adjustment clauses. However, the Company
has to date been permitted to defer and bill or credit such
portions to customers, through the electric and gas adjustment
clauses, over a specified period of time from the effective date
of each change.
The Company's electric fuel adjustment clause (FAC) provides
for partial pass-through of fuel and purchased power cost
fluctuations from amounts forecast, with the Company absorbing a
portion of increases or retaining a portion of decreases up to a
maximum of $15 million per rate year. Thereafter, 100% of the
fluctuation is passed on to ratepayers. The Company also shares
with ratepayers fluctuations from amounts forecast for net resale
margin and transmission benefits, with the Company
retaining/absorbing 40% and passing 60% through to ratepayers.
The amounts retained or absorbed in 1992 through 1994 were not
material.
In the Company's current rate proceeding the Company has
proposed to eliminate the FAC and replace it with the fuel
adjustment mechanism (FAM). If this is implemented, the portion
of fuel and purchase power cost fluctuations, from amounts
forecast, that the Company would retain or absorb could reach a
maximum of $20 million per rate year. For the additional years
of the rate proceeding's five-year plan (1996-1999), the 1995
monthly fuel cost would form the basis for the forecast.
Beginning in 1991, the Company's rate agreements provided
for NERAM, which permits the Company to reconcile actual results
to forecast electric public sales gross margin as defined and
utilized in establishing rates. Depending on the level of actual
sales, a liability to customers was created if sales exceed the
forecast and an asset recorded for a sales shortfall, thereby
generally preserving recorded electric gross margin at the level
forecast in established rates. The 1994 rate settlement provided
for the operation of the NERAM through December 31, 1994.
Recovery or refund of accruals pursuant to the NERAM is
accomplished by a surcharge (either plus or minus) to customers
over a twelve-month period, to begin when cumulative amounts
reach certain specified levels. While the NERAM may be
terminated in 1995, the recovery period of the outstanding
balance as of December 31, 1994 will not be affected.
In February 1994, the Company implemented a weather
normalization clause for retail customers who use gas for heating
to reflect the impact of variations from normal weather on a
billing month basis for the months of October through May,
inclusive. Normal weather is defined as the 30 year average
daily high and low temperatures for the Company's main gas
service territory. The weather normalization clause will only be
activated if the actual weather deviates 2.2% or more from the
normal weather. Weather normalization clause adjustments were
not significant to 1994 gas revenues.
Rate agreements since 1991 also include MERIT, under which
the Company has the opportunity to achieve earnings above its
allowed return on equity based on attainment of specified goals
associated with its self-assessment process. The MERIT program
provides for specific measurement periods and reporting for PSC
approval of MERIT earnings. Approved MERIT awards are billed to
customers over a period not greater than twelve months. The
Company records MERIT earnings when attainment of goals is
approved by the PSC or when objectively measured criteria are
achieved. MERIT expires at the end of 1995.
FEDERAL INCOME TAXES: As directed by the PSC, the Company defers
any amounts payable pursuant to the alternative minimum tax
rules. Deferred investment tax credits are amortized to Other
Income and Deductions over the useful life of the underlying
property.
STATEMENT OF CASH FLOWS: The Company considers all highly liquid
investments, purchased with a remaining maturity of three months
or less, to be cash equivalents.
RECLASSIFICATIONS: Certain amounts from prior years have been
reclassified on the accompanying Consolidated Financial
Statements to conform with the 1994 presentation.
EXPOSURE DRAFT ON IMPAIRMENT OF ASSETS: In November 1993, the
FASB issued an Exposure Draft on "Accounting for the Impairment of
Long-Lived Assets". The Exposure Draft would require companies,
including utilities, to assess the need to recognize a loss
whenever events or circumstances occur which indicate that the
carrying amount of an asset may not be fully recoverable. An
impairment loss would be recognized if the sum of the future
undiscounted net cash flows expected to be generated by an asset
is less than its book value. The amount of the loss would be
based on a comparison of book value to fair value. The Exposure
Draft would also amend Statement of Financial Accounting
Standards No. 71, "Accounting for the Effects of Certain Types of
Regulation," (SFAS No. 71) to require writeoff of a regulatory
asset if it is no longer probable that future revenues will
recover the cost of the asset.
The Exposure Draft, which is expected to become applicable
in 1996, may have consequences to a number of utilities,
including the Company, which are facing growing competitive
threats that may erode future prices, and which have relatively
high-cost nuclear generating assets and unregulated generator
contracts. The Company is also faced with ratemaking proposals
by the PSC Staff in the current 1995 and multi-year rate cases,
and by the Administrative Law Judges (ALJ's) Recommended Decision
in the 1995 case, that would likely result in asset impairment
issues under the Exposure Draft provisions if the PSC Staff's
proposals or the Recommended Decision are adopted by the PSC.
See Management's Discussion and Analysis - "Regulatory
Agreements/Proposals" for a more extensive discussion of the
competitive threats facing the Company and of the PSC Staff's
proposals and the ALJ's Recommended Decision.
While the Company is unable to determine the financial
consequences of applying the provisions of the Exposure Draft, if
the PSC Staff's proposals and/or the ALJ's Recommended Decision
are adopted, they would have a material adverse effect on the
Company's financial position and results of operations.
NOTE 2. RATE AND REGULATORY ISSUES AND CONTINGENCIES
-----------------------------------------------------
In accordance with SFAS No. 71, the Company's financial
statements reflect assets and costs based on ratemaking
conventions, as approved by the PSC and the FERC. Certain
expenses and credits, normally reflected in income as incurred,
are only recognized when included in rates and recovered from or
refunded to customers. Historically, all costs of this nature
which are determined by the regulators to have been prudently
incurred have been recoverable through rates in the course of
normal ratemaking procedures and the Company believes that the
items detailed below will be afforded similar treatment.
Continued accounting under SFAS No. 71 requires, among other
things, that rates be designed to recover specific costs of
providing regulated services and products and that it be
reasonable to assume that rates are set at levels that will
recover a utility's costs and can be charged to and collected
from customers. When a utility determines it can no longer apply
the provisions of SFAS No. 71 to all or a part of its operation,
it must eliminate from its balance sheet, the effects of actions
of regulators that had been recorded previously as assets and
liabilities pursuant to SFAS No. 71 but which would have not been
so accounted for by enterprises in general.
The Company's proposed multi-year rate plan for 1995-1999
contemplates no change in this approach to such reporting, even
though the plan recognizes that in a more competitive environment
an effective response to the general pressure to manage costs and
preserve or expand markets is vital to maintaining profitability.
The Company's proposed plan includes the establishment of rates
for 1995 on a cost of service basis, followed by an index-based
approach to rates for 1996 through 1999. The index is based on
inflation factors believed to be indicative of cost increases to
be experienced by the Company. The proposal for 1996-1999 also
includes adjustment factors related to events outside the
Company's control and a mechanism for resetting rates if the
expected return on equity falls below a minimum threshold.
Therefore, the Company believes that it can continue to apply
SFAS No. 71 under its multi-year rate proposal.
The PSC Staff has proposed a multi-year ratesetting plan
which the Company believes would require writedown of certain
assets, would not permit the continued application of SFAS No. 71
to its generation operations and may similarly jeopardize
application of SFAS No. 71 to its transmission and distribution
operations under certain circumstances. The ALJ's Recommended
Decision proposes to disallow from recovery approximately $18
million of unregulated generator costs, recommends a prudence
investigation of the Company's unregulated generator contract
practices absent a multi-year rate plan, proposes to reduce the
level of departmental expenses and gross margin because of "lack
of support" and states that the VERP savings could be used to
further reduce the rate increase recommended. See Management's
Discussion and Analysis of Financial Condition and Results of
Operations - "Regulatory Agreements/Proposals" for a discussion
of the PSC Staff's and ALJ's proposals and potential financial
consequences. In the event that the Company is required to
writedown its assets, recognize a loss on uneconomic unregulated
generator contracts and/or could no longer apply SFAS No. 71 to
either its generation operations or to its entire electric
business, a material adverse effect on its financial condition
and results of operations would result.
The Company believes the financial consequences to be of an
order of magnitude that would adversely affect the Company's
financial position and results of operations, its ability to
access the capital markets on reasonable and customary terms, its
dividend paying capacity, its ability to continue to make
payments to unregulated generators and its ability to maintain
current levels of service to its customers.
The Company has recorded the following regulatory and other
assets.
(In thousands)
At December 31, 1994 1993
Income taxes recoverable $ 465,109 $ 558,771
Recoverable environmental
restoration costs 240,000 240,000
Deferred finance charges 239,880 239,880
Unamortized debt expense 153,047 154,210
Deferred postretirement benefit 67,486 30,741
costs
Deferred recoverable energy costs 62,884 67,632
Deferred unregulated generators'
contract termination costs 38,286 50,680
Deferred gas pipeline costs 17,000 31,000
Other 129,750 91,313
Total $1,413,442 $1,464,227
INCOME TAXES RECOVERABLE represents the expected future recovery
from ratepayers of the tax consequences of temporary differences
between the recorded book bases and the tax bases of assets and
liabilities. These amounts are amortized and recovered as the
related temporary differences reverse. In January 1993, the PSC
issued a Statement of Interim Policy on Accounting and Ratemaking
Procedures that required adoption of Statement of Financial
Accounting Standards No. 109 - "Accounting for Income Taxes"
(SFAS No. 109) on a revenue-neutral basis.
RECOVERABLE ENVIRONMENTAL RESTORATION COSTS represent the
Company's share of the estimated costs to investigate and perform
certain remediation activities at both Company-owned sites and
non-owned sites with which it may be associated. Current rates
provide an annual allowance to recover anticipated annual
expenditures.
DEFERRED FINANCE CHARGES represent the deferral of the
discontinued portion of AFC related to construction work in
progress (CWIP) at Unit 2 which was included in rate base. In
1985, pursuant to PSC authorization, the Company discontinued
accruing AFC on CWIP for which a cash return was being allowed.
This amount, which was accumulated in deferred debit and credit
accounts up to the commercial operation date of Unit 2, awaits
future disposition by the PSC. A portion of the deferred credit
could be utilized to reduce future revenue requirements over a
period shorter than the life of Unit 2, with a like amount of
deferred debit amortized and recovered in rates over the
remaining life of Unit 2.
UNAMORTIZED DEBT EXPENSE represents the costs to issue long-term
debt securities including premiums on certain debt retirements
prior to maturity. These amounts are amortized as interest
expense ratably over the lives of the related issues in
accordance with PSC directives.
DEFERRED POSTRETIREMENT BENEFIT COSTS represent the excess of
such costs recognized in accordance with Statement of Financial
Accounting Standards No. 106 - "Employers' Accounting for
Postretirement Benefits Other Than Pensions" (SFAS No. 106) over
the amount received in rates. In accordance with the PSC policy
statement, postretirement benefit costs other than pensions are
being phased-in to rates over a five-year period and amounts
deferred will be amortized and recovered over a period not to
exceed 20 years.
DEFERRED RECOVERABLE ENERGY COSTS includes the difference between
actual fuel costs and the fuel revenues received through the
Company's fuel adjustment clause. The balance also includes the
unamortized portion of the Company's mandated contribution to
decommission the Department of Energy's (DOE) uranium enrichment
facilities. The costs to decommission DOE facilities result from
the Energy Policy Act of 1992, which requires domestic utilities
to contribute amounts, escalated for inflation, based upon the
amount of uranium enriched by DOE for each utility. The fuel
costs are amortized as they are collected from customers while
the costs to decommission the DOE facilities are being amortized
and recovered, as a fuel cost, over a period ending in 2006.
DEFERRED UNREGULATED GENERATORS' CONTRACT TERMINATION COSTS
represent the Company's cost to buy out certain unregulated
generator projects. Approximately $15 million of these costs are
currently being recovered over a three-year period beginning in
1994. The remaining costs are being addressed in the Company's
current rate filing.
DEFERRED GAS PIPELINE COSTS represent the estimated restructuring
costs the Company anticipates incurring as a result of FERC Order
No. 636. These costs are treated as a cost of purchased gas and
are recoverable through the operation of the gas adjustment
clause mechanism, or direct surcharge to transportation customers
over a period of approximately 7 years beginning in 1994, with
recovery more heavily weighted in the first 3 years.
All other regulatory assets are generally being amortized
over various periods or addressed in the Company's current rate
filing under a provision which proposes recovery using a one-year
rate surcharge.
The above regulatory assets are generally not included in
rate base (and therefore do not earn a return) either because an
outlay of funds has not yet occurred or as a result of regulatory
policy.
NOTE 3. NUCLEAR OPERATIONS
---------------------------
The Company is the owner and operator of the 613 MW Unit 1
and the operator and a 41% co-owner of the 1,062 MW Unit 2. Unit
1 was placed in commercial operation in 1969 and Unit 2 in 1988.
UNIT 1 ECONOMIC STUDY: Under the terms of a previous regulatory
agreement, the Company agreed to prepare and update studies of
the advantages and disadvantages of continued operation of Unit
1. The 1990 study recommended continued operation of Unit 1 over
the next fuel cycle, and the 1992 study indicated that the Unit
could continue to provide benefits for the term of its license
(2009) if operating costs could be reduced and generating output
improved above its then historical average.
The 1994 study again confirmed that continued operation over
the remaining term of its license is warranted. The Company will
continue as a matter of course to examine the economic and
strategic issues related to operation of all its generating
units.
The operating experience at Unit 1 has improved
substantially since the prior study. At December 31, 1994, Unit
1's capacity factor has been about 94% since the 1993 refueling
outage.
The Company's net investment in Unit 1 is approximately $575
million, exclusive of decommissioning costs.
UNIT 1 STATUS: A scheduled refueling outage began on February 8,
1995. Using the net design electric rating as a basis, Unit 1's
capacity factor for 1994 was approximately 92%. Using NRC
guidelines, which reflect net maximum dependable capacity during
the most restrictive seasonal conditions, Unit 1's capacity
factor was approximately 99%.
UNIT 2 STATUS: The next refueling outage is scheduled to begin
in April 1995. Using the net design electric rating as a basis,
Unit 2's capacity factor for 1994 was approximately 90%. Using
NRC guidelines as described above, Unit 2's capacity factor was
approximately 96%.
NUCLEAR PLANT DECOMMISSIONING: The Company estimates the cost of
decommissioning Unit 1 and its ownership interest in Unit 2 at
December 31, 1994 as follows:
Unit 1 Unit 2
Site Study (year) 1994 1989 (a)
End of Plant Life (year) 2009 2026
Radioactive Dismantlement
to Begin (year) 2026 2029
Method of Decommissioning Delayed Immediate
Dismantlement Dismantlement
Cost of Decommissioning (in 1994 dollars) (In millions)
Radioactive Components $344 $207
Non-radioactive Components 51 33
Fuel Dry Storage/Continuing Care 132 50
$527 $290
(a) The estimate of Unit 2's decommissioning costs was
updated by extrapolating data from the updated Unit 1
decommissioning estimate. The Unit 2 estimate should be
considered preliminary, as the Company expects to perform a more
detailed study in 1995.
The Company estimates by the time decommissioning is
completed, the above costs will ultimately amount to $1.4 billion
and $1.0 billion for Unit 1 and Unit 2, respectively, using 2.3%
as an initial inflation factor. This factor increases gradually,
reaching a maximum of 3.4% in the year 2004 and for the years
thereafter.
In addition to the costs mentioned above, the Company
expects to incur post-shutdown costs for plant rampdown,
insurance and property taxes. In 1994 dollars, these costs are
expected to amount to $110 million and $80 million for Unit 1 and
the Company's share of Unit 2, respectively. The amounts will
escalate to $235 million and $405 million for Unit 1 and the
Company's share of Unit 2, respectively.
Based upon a 1989 study the Company had previously estimated
the cost to decommission Unit 1 to be approximately $416 million
in 2009 ($263 million in 1994 dollars). In addition, non-
radioactive dismantlement costs were estimated to be $25 million
in 1994 dollars. The 1989 estimate was based upon a
dismantlement of Unit 1 at the end of its useful life in 2009.
The $527 million estimate assumes a delayed dismantlement to
coincide with Unit 2 and was prepared in connection with the
Economic Study discussed above. The estimate differs from the
1989 estimate primarily due to an increase in burial costs and
the inclusion of nuclear fuel storage charges and costs for
continuing care. The delayed dismantlement approach should be
the most economic after applying the Company's current weighted
average cost of capital.
The Company, in a 1989 study, estimated its 41% share of the
cost to decommission Unit 2 to be $316 million in 2026 dollars
($112 million in 1994 dollars). In addition, the Company's share
of non-radioactive dismantlement cost were estimated to be $18
million (in 1994 dollars). The $290 million estimate differs
from the 1989 study primarily due to an increase in burial costs
and the inclusion of nuclear fuel storage charges and costs for
continuing care.
Decommissioning costs recovered in rates are reflected in
Accumulated Depreciation and Amortization on the Balance Sheet
and amount to $134.1 million and $113.9 million at December 31,
1994 and 1993, respectively for both Units. The annual allowance
for Unit 1 and the Company's share of Unit 2 for the years ended
December 31, 1994, 1993 and 1992 was approximately $18.7, $18.7
and $23.1 million, respectively. These amounts were based on the
1989 study. The FASB has added to its agenda a project on
accounting for obligations for decommissioning of nuclear power
plants. See Note 1 - "Depreciation, Amortization and Nuclear
Generating Plant Decommissioning Costs".
NRC regulations require owners of nuclear power plants to
place funds into an external trust to provide for the cost of
decommissioning contaminated portions of nuclear facilities and
establish minimum amounts that must be available in such a trust
at the time of decommissioning. As of December 31, 1994, the
fair value of funds accumulated in the Company's external trusts
were $74.0 million for Unit 1 and $18.7 million for its share of
Unit 2. The investments are included in Other property and
investments. Earnings on the external trust aggregated $13.1
million through December 31, 1994 and, because they are available
to fund decommissioning, have also been included in Accumulated
Depreciation and Amortization. See Note 10 - "Disclosures about
Fair Value of Financial Instruments". Amounts recovered for
non-radioactive dismantlement are accumulated in an internal
reserve fund which has an accumulated balance of $37.1 million at
December 31, 1994.
The NRC minimum decommissioning cost calculation is based
upon a 1986 cost estimate escalated by increases in labor,
energy, and burial cost factors. A substantial increase in
burial costs, partly offset by reduced estimates in the volumes
of waste to be disposed, increased the NRC minimum requirement
for Unit 1 to $381 million in 1994 dollars and the Company's
share of Unit 2 to $173 million in 1994 dollars. The Company's
1995 rate filing includes an aggregate increase of $8 million in
decommissioning allowances to reflect funding to the increased
NRC minimum requirements. In its next rate filing the Company
intends to seek decommissioning allowances necessary to fund to
the Company's 1994 decommissioning estimates discussed above.
There is no assurance that the decommissioning allowance
recovered in rates will ultimately aggregate a sufficient amount
to decommission the units. The Company believes that if
decommissioning costs are higher than currently estimated, the
costs would ultimately be included in the rate process.
NUCLEAR LIABILITY INSURANCE: The Atomic Energy Act of 1954, as
amended, requires the purchase of nuclear liability insurance
from the Nuclear Insurance Pools in amounts as determined by the
NRC. At the present time, the Company maintains the required
$200 million of nuclear liability insurance.
In 1993, the statutory liability limits for the protection
of the public under the Price-Anderson Amendments Act of 1988
(the Act) were further increased. With respect to a nuclear
incident at a licensed reactor, the statutory limit, which is in
excess of the $200 million of nuclear liability insurance, is
currently $8.3 billion without the 5% surcharge discussed below.
This limit would be funded by assessments of up to $75.5 million
against each of the 110 presently licensed nuclear reactors in
the United States, payable at a rate not to exceed $10 million
per reactor per year. Such assessments are subject to periodic
inflation indexing and to a 5% surcharge if funds prove
insufficient to pay claims.
The Company's interest in Units 1 and 2 could expose it to a
potential loss, for each accident, of $111.8 million through
assessments of $14.1 million per year in the event of a serious
nuclear accident at its own or another licensed U.S. commercial
nuclear reactor. The amendments also provide, among other
things, that insurance and indemnity will cover precautionary
evacuations, whether or not a nuclear incident actually occurs.
NUCLEAR PROPERTY INSURANCE: The Nine Mile Point Nuclear Site has
$500 million primary nuclear property insurance with the Nuclear
Insurance Pools (ANI/MRP). In addition, there is $1.4 billion,
in excess of the $500 million primary nuclear insurance, with
Nuclear Electric Insurance Limited (NEIL) and $850 million, which
is also in excess of the $500 million primary and the $1.4
billion excess nuclear insurance, also with NEIL. The total
nuclear property insurance is $2.75 billion. NEIL is a utility
industry-owned mutual insurance company chartered in Bermuda.
NEIL also provides insurance coverage against the extra expense
incurred in purchasing replacement power during prolonged
accidental outages. The insurance provides coverage for outages
for 156 weeks, after a 21-week waiting period.
NEIL insurance is subject to retrospective premium
adjustment under which the Company could be assessed up to
approximately $17.2 million per loss.
LOW LEVEL RADIOACTIVE WASTE: The Federal Low Level Radioactive
Waste Policy Act as amended in 1985 requires states to join
compacts or to individually develop their own low level
radioactive waste disposal site. In response to the Federal law,
New York State decided to develop its own site because of the
large volume of low level radioactive waste it generates, and
committed to develop a plan for the management of low level
radioactive waste in New York State during the interim period
until a disposal facility is available.
New York State is still developing disposal methodology and
acceptance criteria for a disposal facility. The latest New York
State low level radioactive waste site development schedule now
assumes two possible siting scenarios, a volunteer approach and a
non-volunteer approach, either of which would begin operation in
2001. Effective July 1, 1994, access to the Barnwell, South
Carolina waste disposal facility was denied by the state of
South Carolina, to out-of-region low level radioactive waste
generators, including New York State. The Company has
implemented a low level radioactive waste management program so
that Unit 1 and Unit 2 are prepared to properly handle interim
on-site storage of low level radioactive waste for at least a 10
year period.
NUCLEAR FUEL DISPOSAL COST: In January 1983, the Nuclear Waste
Policy Act of 1982 (the Nuclear Waste Act) established a cost of
$.001 per kilowatt-hour of net generation for current disposal of
nuclear fuel and provides for a determination of the Company's
liability to the Department of Energy (DOE) for the disposal of
nuclear fuel irradiated prior to 1983. The Nuclear Waste Act
also provides three payment options for liquidating such
liability and the Company has elected to delay payment, with
interest, until 1998, the year in which the Company had initially
planned to ship irradiated fuel to an approved DOE disposal
facility. See Note 5 - Capitalization. Progress in developing
the DOE facility has been slow and it is anticipated that the DOE
facility will not be ready to accept deliveries until at least
2010. The Company does not anticipate that the DOE will accept
all of its spent fuel immediately upon opening of the facility,
but rather expects a transfer period of as long as 20 years. The
Company has several alternatives under consideration to provide
additional storage facilities, as necessary. Each alternative
will likely require NRC approval, may require other regulatory
approvals and would likely require the incurrance of additional
costs. The Company does not believe that the possible
unavailability of the DOE disposal facility until 2010 will
inhibit operation of either Unit.
NOTE 4. JOINTLY-OWNED GENERATING FACILITIES
--------------------------------------------
The following table reflects the Company's share of jointly-
owned generating facilities at December 31, 1994. The Company is
required to provide its respective share of financing for any
additions to the facilities. Power output and related expenses
are shared based on proportionate ownership. The Company's share
of expenses associated with these facilities is included in the
appropriate operating expenses in the Consolidated Statements of
Income.
In thousands of dollars
Percentage Accumulated Construction
Ownership Utility Plant depreciation work in
progress
Roseton Steam Station
Units No. 1 and 2 (a) 25 $ 93,090 $ 46,625 $ 2,679
Oswego Steam Station
Unit No. 6 (b) 76 $ 270,498 $106,343 $ 5,143
Nine Mile Point Nuclear
Station Unit No. 2 (c) 41 $1,504,185 $252,747 $12,029
(a) The remaining ownership interests are Central Hudson Gas and Electric Corporation, the operator of the plant
(35%), and Consolidated Edison Company of New York, Inc. (40%). On March 30, 1994, the Company and Central
Hudson Gas and Electric Corporation (CHG&E) terminated and cancelled the 1987 agreement where CHG&E had agreed
to acquire the Company's 25% interest in the plant in ten equal installments of 2.5% (30 mw.) starting on
December 31, 1994 and on each December 31 thereafter. The cancellation agreement is subject to PSC approval.
Output of Roseton Units No. 1 and 2, which have a capability of 1,200,000 kw., is shared in the same
proportions as the cotenants' respective ownership interests.
(b) The Company is the operator. The remaining ownership interest is Rochester Gas and Electric Corporation (24%).
Output of Oswego Unit No. 6, which has a capability of 850,000 kw., is shared in the same proportions as the
cotenants' respective ownership interests.
(c) The Company is the operator. The remaining ownership interests are Long Island Lighting Company (18%), New
York State Electric and Gas Corporation (18%), Rochester Gas and Electric Corporation (14%), and Central Hudson
Gas and Electric Corporation (9%). Output of Unit 2, which has a capability of 1,062,000 kw., is shared in the
same proportions as the cotenants' respective ownership interests.
/TABLE
NOTE 5. CAPITALIZATION
-----------------------
CAPITAL STOCK
The Company is authorized to issue 185,000,000 shares of
common stock, $1 par value; 3,400,000 shares of preferred stock,
$100 par value; 19,600,000 shares of preferred stock, $25 par
value; and 8,000,000 shares of preference stock, $25 par value.
The table below summarizes changes in the capital stock
issued and outstanding and the related capital accounts for 1992,
1993 and 1994:
Common Stock $1 par value Preferred Stock $100 par value
Non-
Shares Amount* Shares Redeemable* Redeemable*
December 31, 1991 136,099,654 $136,100 2,490,000 $210,000 $39,000 (a)
Issued 1,059,953 1,060 - - -
Redemptions (78,000) - (7,800)
Foreign currency
translation adjustment
---------------------------------------------------------------------------------------------------------
December 31, 1992: 137,159,607 137,160 2,412,000 210,000 31,200 (a)
Issued 5,267,450 5,267 - - -
Redemptions (18,000) - (1,800)
Foreign currency
translation adjustment
---------------------------------------------------------------------------------------------------------
December 31, 1993: 142,427,057 142,427 2,394,000 210,000 29,400 (a)
Issued 1,884,409 1,884 - - -
Redemptions (18,000) - (1,800)
Foreign currency
translation adjustment
---------------------------------------------------------------------------------------------------------
December 31, 1994: 144,311,466 $144,311 2,376,000 210,000 $27,600 (a)
---------------------------------------------------------------------------------------------------------
* In thousands of dollars
(a) Includes sinking fund requirements due within one year.
/TABLE
Preferred Stock $25 par value
Non- Capital Stock Premium
Shares Redeemable* Redeemable* and Expense (Net)*
December 31, 1991 11,222,005 $ 80,000 $200,550 (a) $1,650,312
Issued - - - 18,401
Redemptions (1,366,000) - (34,150) 796
Foreign currency
translation adjustment (11,494)
---------------------------------------------------------------------------------------------------------
December 31, 1992: 9,856,005 80,000 166,400 (a) 1,658,015
Issued - - - 111,497
Redemptions (1,816,000) - (45,400) (2,471)
Foreign currency
translation adjustment (4,335)
---------------------------------------------------------------------------------------------------------
December 31, 1993: 8,040,005 80,000 121,000 (a) 1,762,706
Issued 6,000,000 - 150,000 27,630
Redemptions (1,266,000) (31,650) (4,619)
Foreign currency
translation adjustment (6,213)
---------------------------------------------------------------------------------------------------------
December 31, 1994: 12,774,005 $ 80,000 $239,350 (a) $1,779,504
---------------------------------------------------------------------------------------------------------
* In thousands of dollars
(a) Includes sinking fund requirements due within one year.
The cumulative amount of foreign currency translation adjustment at December 31, 1994 was $(13,313).
/TABLE
NON-REDEEMABLE PREFERRED STOCK (Optionally Redeemable)
------------------------------------------------------
The Company has certain issues of preferred stock which provide for optional redemption at December 31, as follows:
Redemption price per share
In thousands of (Before adding accumulated dividends)
dollars
Series Shares 1994 1993
Preferred $100 par value:
3.40% 200,000 $20,000 $20,000 $103.50
3.60% 350,000 35,000 35,000 104.85
3.90% 240,000 24,000 24,000 106.00
4.10% 210,000 21,000 21,000 102.00
4.85% 250,000 25,000 25,000 102.00
5.25% 200,000 20,000 20,000 102.00
6.10% 250,000 25,000 25,000 101.00
7.72% 400,000 40,000 40,000 102.36
Preferred $25 par
value:
Adjustable Rate
Series A 1,200,000 30,000 30,000 25.00
Series C 2,000,000 50,000 50,000 25.75(1)
$290,000 $290,000
(1) Eventual minimum $25.00.
/TABLE
MANDATORILY REDEEMABLE PREFERRED STOCK
--------------------------------------
The Company has certain issues of preferred stock which provide for
mandatory and optional redemption at December 31, as follows:
Redemption price per
Shares In thousands of share
dollars (Before adding
accumulated dividends)
Eventual
Series 1994 1993 1994 1993 1994 minimum
Preferred $100 par value:
7.45% (a) 276,000 294,000 $ 27,600 $ 29,400 $102.41 $100.00
Preferred $25 par
value:
7.85% (a) 914,005 914,005 22,850 22,850 (b) 25.00
8.375% (a) 400,000 500,000 10,000 12,500 25.33 25.00
8.70% (a) 200,000 600,000 5,000 15,000 25.25 25.00
8.75% - 600,000 - 15,000 25.25 25.00
9.50% 6,000,000 - 150,000 - (c) 25.00
9.75% (a) 210,000 276,000 5,250 6,900 25.13 25.00
Adjustable
Rate 1,850,000 1,950,000 46,250 48,750 25.00 25.00
Series B (a)
266,950 150,400
Less sinking fund
requirements 10,950 27,200
$256,000 $123,200
(a) These series require mandatory sinking funds for annual redemption
and provide optional sinking funds through which the Company may
redeem, at par, a like amount of additional shares (limited to
120,000 shares of the 7.45% series). The option to redeem additional
amounts is not cumulative.
(b) Not redeemable until 1996.
(c) Not redeemable until 1999.
The Company's five year mandatory sinking fund redemption requirements for
preferred stock, in thousands, for 1995 through 1999 are as follows: $10,950;
$9,150; $10,120; $10,120; and $7,620, respectively.
LONG-TERM DEBT
--------------
Long-term debt at December 31, consisted of the following:
In thousands of dollars
Series Due 1994 1993
First mortgage bonds:
8 7/8% 1994 $ - $150,000
4 5/8% 1994 - 40,000
5 7/8% 1996 45,000 45,000
6 1/4% 1997 40,000 40,000
6 1/2% 1998 60,000 60,000
10 1/4% 1999** - 100,000
10 3/8% 1999** - 100,000
9 1/2% 2000 150,000 150,000
6 7/8% 2001 210,000 -
9 1/4% 2001 100,000 100,000
5 7/8% 2002 230,000 230,000
6 7/8% 2003 85,000 85,000
7 3/8% 2003 220,000 220,000
8% 2004 300,000 300,000
6 5/8% 2005 110,000 110,000
9 3/4% 2005 150,000 150,000
*6 5/8% 2013 45,600 45,600
*11 1/4% 2014** - 75,690
*11 3/8% 2014** - 40,015
9 1/2% 2021 150,000 150,000
8 3/4% 2022 150,000 150,000
8 1/2% 2023 165,000 165,000
7 7/8% 2024 210,000 210,000
*8 7/8% 2025 75,000 75,000
*7.2% 2029 115,705 -
Total First Mortgage Bonds 2,611,305 2,791,305
Promissory notes:
*Adjustable Rate Series due
July 1, 2015 100,000 100,000
December 1, 2023 69,800 69,800
December 1, 2025 75,000 75,000
December 1, 2026 50,000 50,000
March 1, 2027 25,760 25,760
July 1, 2027 93,200 93,200
Unsecured notes payable:
Medium Term Notes, Various 45,000 55,500
rates, due 1994-2004
Swiss Franc Bonds due December 50,000 50,000
15, 1995
Revolving Credit Agreement 99,000 -
Other 169,421 176,888
Unamortized premium (discount) (12,641) (12,656)
TOTAL LONG-TERM DEBT 3,375,845 3,474,797
Less long-term debt due within 77,971 216,185
one year
$3,297,874 $3,258,612
*Tax-exempt pollution control related
issues
**Retired prior to maturity
/TABLE
Several series of First Mortgage Bonds and Notes were issued
to secure a like amount of tax-exempt revenue bonds issued by the
New York State Energy Research and Development Authority
(NYSERDA). Approximately $414 million of such bonds bear
interest at a daily adjustable interest rate (with a Company
option to convert to other rates, including a fixed interest rate
which would require the Company to issue First Mortgage Bonds to
secure the debt) which averaged 2.76% for 1994 and 2.14% for 1993
and are supported by bank direct pay letters of credit. Pursuant
to agreements between NYSERDA and the Company, proceeds from such
issues were used for the purpose of financing the construction of
certain pollution control facilities at the Company's generating
facilities or to refund outstanding tax-exempt bonds and notes.
The $115.7 million of tax-exempt bonds due 2014 were
refinanced at 7.2% during 1994 pursuant to a forward refunding
agreement entered into in 1992.
Notes payable include a Swiss franc bond issue maturing in
1995 equivalent to $50 million in U.S. funds. Simultaneously
with the sale of these bonds, the Company entered into a currency
exchange agreement to fully hedge against currency exchange rate
fluctuations.
Other long-term debt in 1994 consists of obligations under
capital leases of approximately $44.3 million, a liability to the
U.S. Department of Energy for nuclear fuel disposal of
approximately $97.4 million (see Note 3 - "Nuclear Fuel Disposal
Costs") and liabilities for unregulated generator contract
terminations of approximately $27.7 million (see Note 9 - "Long-
term Contracts for the Purchase of Electric Power").
Certain of the Company's debt securities provide for a
mandatory sinking fund for annual redemption. The aggregate
maturities of long-term debt for the five years subsequent to
December 31, 1994, excluding capital leases, are approximately
$73 million, $61 million, $145 million, $164 million and $0,
respectively.
NOTE 6. Bank Credit Arrangements
---------------------------------
At December 31, 1994, (excluding HYDRA-Co Enterprises, Inc.
which was sold January 9, 1995), the Company had $580 million of
bank credit arrangements with 16 banks. These credit
arrangements consisted of $200 million in commitments under a
Revolving Credit Agreement, $199 million in one-year commitments
under Credit Agreements, $111 million in lines of credit and $70
million under a Bankers Acceptance Facility Agreement. The
Revolving Credit Agreement extends into 1997 and the interest
rate applicable to borrowing is based on certain rate options
available under the Agreement. All of the other bank credit
arrangements are subject to review on an ongoing basis with
interest rates negotiated at the time of use. The Company also
issues commercial paper. Unused bank credit facilities are held
available to support the amount of commercial paper outstanding.
In addition to these credit arrangements, the Company had
outstanding at December 31, 1994, $161 million in bank loans
which expire in 1995 and which the Company expects to renew.
The Company pays fees for substantially all of its bank
credit arrangements. The Bankers Acceptance Facility Agreement,
which is used to finance the fuel inventory for the Company's
generating stations, provides for the payment of fees only at the
time of issuance of each acceptance.
The following table summarizes additional information applicable to short-term debt:
In thousands of dollars
At December 31, 1994 1993
Short-term debt:
Commercial paper . . . . $ 84,750 $210,016
Notes payable . . . . . . 321,000 153,000
Bankers acceptances . . . 11,000 5,000
$416,750 $368,016
Weighted average interest
rate (a) . . 6.21% 3.60%
----------------------------------------------------------------------------------
For Year Ended December 31:
Daily average outstanding . $342,801 $165,458
Monthly weighted average interest
rate (a) . . . . . 4.71% 3.72%
Monthly amount outstanding $497,700 $368,016
----------------------------------------------------------------------------------
(a) Excluding fees.
/TABLE
NOTE 7. FEDERAL AND FOREIGN INCOME TAXES
-----------------------------------------
Components of United States and foreign income before income taxes:
In thousands of dollars
1994 1993 1992
United States . . . . . . . . . . $291,501 $438,914 $410,283
Foreign . . . . . . . . . . . . . 15,475 (24,845) 18,394
Consolidating eliminations . . . (18,523) 4,837 (16,741)
Income before income taxes . . . $288,453 $418,906 $411,936
Following is a summary of the components of Federal and foreign income
tax and a reconciliation between the amount of Federal income tax expense
reported in the Consolidated Statements of Income and the computed amount
at the statutory tax rate:
Summary Analysis: In thousands of dollars
1994 1993 1992
Components of Federal and foreign income taxes:
Current tax expense: Federal . . $117,314 $118,918 $119,929
Foreign . . . . . 4,423 8,445 915
121,737 127,363 120,844
Deferred tax expense:Federal . . (6,931) 35,152 54,858
Foreign . . . . . . . . . 3,028 - 7,531
(3,903) 35,152 62,389
Income taxes included in
Operating Expenses . . . . . . . 117,834 162,515 183,233
Current Federal and foreign income
tax credits included in
Other Income and Deductions . . (11,507) (16,061) (31,787)
Deferred Federal and foreign income
tax expense included in Other
Income and Deductions . . . . . 5,142 621 4,058
Total $111,469 $147,075 $155,504
Reconciliation between Federal and foreign income taxes and the tax computed at prevailing U.S. statutory
rate on income before income taxes:
Computed tax 100,959 $146,617 $140,058
Reduction (increase) attributable to flow-through of certain tax adjustments:
Depreciation . . . . . . . . . (33,328) (35,153) (37,543)
Allowance for funds used during
construction . . . . . . . . 3,291 2,951 11,205
Cost of removal . . . . . . . . 8,908 7,822 6,845
Deferred investment tax credit
amortization . . . . . . . . 8,018 8,018 8,024
Other . . . . . . . . . . . . . 2,601 15,904 (3,977)
(10,510) (458) (15,446)
Federal and foreign income taxes $111,469 $147,075 $155,504
/TABLE
At December 31, the deferred tax liabilities (assets) were comprised of the following:
(In thousands)
1994 1993
Alternative minimum tax $ (93,893) $ (95,071)
Unbilled revenue (98,201) (82,829)
Other (258,621) (163,256)
Total deferred tax assets (450,715) (341,156)
Depreciation related 1,398,695 1,387,244
Investment tax credit related 95,325 108,140
Other 215,158 190,031
Total deferred tax 1,709,178 1,685,415
liabilities
Accumulated deferred income $1,258,463 $1,344,259
taxes
/TABLE
NOTE 8. PENSION AND OTHER RETIREMENT PLANS
-------------------------------------------
The Company and certain of its subsidiaries have non-
contributory, defined-benefit pension plans covering
substantially all their employees. Benefits are based on the
employee's years of service and compensation level. The
Company's general policy is to fund the pension costs accrued
with consideration given to the maximum amount that can be
deducted for Federal income tax purposes.
During 1994, the Company offered an early retirement program
and a voluntary separation program (together the VERP) to reduce
the Company's staffing levels and streamline operations. The
VERP, which included both represented and non represented
employees, was accepted by approximately 1,400 employees. The
following table sets forth the components and allocation of the
costs of the programs:
(In thousands of dollars)
Plan Electric Gas Total
Pension benefits $107,800 $ 6,200 $114,000
Other Postretirement benefits 75,900 4,300 80,200
Other Postemployment benefits 16,800 900 17,700
200,500 11,400 211,900
Less: allocation to
cotenant and other ventures 3,900 - 3,900
Cost $196,600 $11,400 $208,000
Included in 1994 operating expenses is a one-time charge of
$196.6 million, representing the cost of the VERP allocable to
electric customers. The Company has recorded a regulatory asset
for the portion of the VERP cost allocable to gas customers of
approximately $11.4 million, which it has proposed to recover
over a five-year period beginning in 1995.
Net pension cost for 1994, 1993 and 1992 included the following components:
In thousands of dollars
1994 1993 1992
Service cost - benefits $ 30,400 $ 30,100 $ 27,100
earned during the period
Interest cost on 62,700 54,200 48,800
projected benefit
obligation
Actual return on Plan 7,700 (106,100) (59,600)
assets
Net amortization and (63,600) 38,700 6,900
deferral
Net pension cost 37,200 16,900 23,200
VERP costs 114,000 - -
Regulatory asset (6,200) - -
Total pension cost (1) $145,000 $ 16,900 $ 23,200
(1)$5.9 million for 1994, $5.6 million for 1993 and $6.2 million for 1992 was related to construction labor and,
accordingly, was charged to construction projects.
/TABLE
The following table sets forth the plan's funded status and amounts recognized in the Company's Consolidated
Balance Sheets:
In thousands of
dollars
At December 31, 1994 1993
Actuarial present value of accumulated
benefit obligations:
Vested benefits $640,689 $ 501,900
Non-vested benefits 69,642 64,973
Accumulated benefit obligations 710,331 566,873
Additional amounts related to projected pay 222,667 236,906
increases
Projected benefits obligation for service 932,998 803,779
rendered to date
Plan assets at fair value, consisting
primarily of listed stocks, bonds, other 893,313 913,200
fixed income obligations and insurance
contracts
Plan assets in excess of (less than)
projected benefit obligations (39,685) 109,421
Unrecognized net obligation at January 1,
1987 being recognized over approximately 19 27,122 32,392
years
Unrecognized net gain from actual return on
plan assets different from that assumed
(58,379) (114,536)
Unrecognized net gain from past experience
different from that assumed and effects of
changes in assumptions amortized over 10 (67,857) (39,652)
years
Prior service cost not yet recognized in net 44,421 49,613
periodic pension cost
Pension asset (liability) included in the $(94,378) $ 37,238
consolidated balance sheets
Principle Actuarial Assumptions (%):
Discount Rate 8.00 7.30
Rate of increase in future compensation
levels (plus merit increases) 3.25 3.25
Long-term rate of return on
plan assets 8.75 9.00
/TABLE
In addition to providing pension benefits, the Company and
its subsidiaries provide certain health care and life insurance
benefits for active and retired employees and dependents. Under
current policies, substantially all of the Company's employees
may be eligible for continuation of some of these benefits upon
normal or early retirement.
The Company accounts for the cost of these benefits in
accordance with PSC policy requirements which generally comply
with SFAS No. 106. This Statement, which was implemented
beginning in 1993, requires accrual accounting by employers for
postretirement benefits other than pensions reflecting currently
earned benefits. The 1992 cost of these benefits was
approximately $16.7 million. The Company has various trusts to
fund its future OPEB obligation. The Company made contributions
to such trusts, equal to the amount received in rates, of
approximately $24 million and $12 million in 1994 and 1993,
respectively.
Net postretirement benefit cost for 1994 and 1993 included the following components:
In thousands of dollars
1994 1993
Service cost - benefits $ 15,000 $12,300
attributed to service during the period
Interest cost on accumulated benefit 40,200 32,800
obligation
Actual return on plan assets (900) -
Amortization of the transition obligation 20,200 20,400
over 20 years
Net amortization 8,900 -
Net postretirement benefit cost 83,400 65,500
VERP costs 80,200 -
Regulatory asset (4,300) -
Total postretirement benefit cost $159,300 $65,500
/TABLE
The following table sets forth the plan's funded status and amounts recognized in the Company's Consolidated
Balance Sheet:
In thousands of dollars
1994 1993
At December 31,
Actuarial present value of accumulated benefit
obligation:
Retired and surviving spouses $371,223 $224,936
Active eligible 20,400 73,474
Active ineligible 208,900 220,420
Accumulated benefit obligation 600,523 518,830
Plan assets at fair value, consisting primarily
of listed stocks, bonds and other fixed 36,754 11,967
obligations
Accumulated postretirement benefit obligation 563,769 506,863
in excess of plan assets
Unrecognized net loss from past experience 71,939 82,756
different from that assumed and effects of
changes in assumptions
Unrecognized transition obligation being
amortized over 20 years 337,336 388,600
Accrued postretirement benefit liability
included in the consolidated balance sheet $154,494 $ 35,507
Principal actuarial assumptions (%):
Discount rate 8.00 7.30
Long-term rate of return on plan assets 8.75 -
Health care cost trend rate:
Pre-65 12.00 10.05
Post-65 9.00 7.05
/TABLE
At December 31, 1994, the assumed health cost trend rates
gradually decline to 5.75% in 1999. If the health care cost
trend rate was increased by one percent, the accumulated
postretirement benefit obligation as of December 31, 1994 would
increase by approximately 11.2% and the aggregate of the service
and interest cost component of net periodic postretirement
benefit cost for the year would increase by approximately 12.7%.
On January 1, 1994, the Company adopted Statement of
Financial Accounting Standards No. 112, "Employers' Accounting
for Postemployment Benefits" (SFAS No. 112). This Statement
requires employers to recognize the obligation to provide
postemployment benefits if the obligation is attributable to
employees' past services, rights to those benefits are vested,
payment is probable and the amount of the benefits can be
reasonably estimated. The Company previously accounted for such
costs on a cash basis. At December 31, 1994, the Company's
postemployment benefit obligation is approximately $26.3 million,
including the portion of the obligation related to the VERP. The
Company has absorbed in 1994 earnings, $16.8 million related to
the postemployment benefit portion of VERP costs allocated to the
electric business and has recorded a regulatory asset of
approximately $9.5 million, the majority of which is expected to
be recovered equally over three years beginning in 1995.
NOTE 9. COMMITMENTS AND CONTINGENCIES
--------------------------------------
CONSTRUCTION PROGRAM: The Company is committed to an ongoing
construction program to assure delivery of its electric and gas
services. The Company presently estimates that the construction
program for the years 1995 through 1999 will require
approximately $1.7 billion, excluding AFC and nuclear fuel. For
the years 1995 through 1999, the estimates are $341 million, $341
million, $343 million, $344 million and $344 million,
respectively. These amounts are reviewed by management as
circumstances dictate.
LONG-TERM CONTRACTS FOR THE PURCHASE OF ELECTRIC POWER: At
January 1, 1995, the Company had long-term contracts to purchase
electric power from the following generating facilities owned by
the New York Power Authority (NYPA):
Purchased Estimated
Facility Expiration date of capacity annual
contract in kw. capacity cost
Niagara - hydroelectric 2007 926,000(a) $23,200,000
project
St. Lawrence - 2007 104,000 1,300,000
hydroelectric project
Blenheim-Gilboa - pumped
storage generating 2002 270,000 7,500,000
station
Fitzpatrick - nuclear year-to-year
plant basis 74,000(b) 7,900,000
1,374,000 $39,900,000
(a) 926,000 kw for summer of 1995; 951,000 kw for winter of 1995-96.
(b) 74,000 kw for summer of 1995; 110,000 kw for winter of 1995-96.
/TABLE
The purchase capacities shown above are based on the
contracts currently in effect. The estimated annual capacity
costs are subject to price escalation and are exclusive of
applicable energy charges. The total cost of purchases under
these contracts was approximately $85.1 million, $72.2 million
and $64.4 million for the years 1994, 1993 and 1992,
respectively.
Under the requirements of the Federal Public Utility
Regulatory Policies Act of 1978, the Company is required to
purchase power generated by unregulated generators, as defined
therein. At December 31, 1994, the Company had virtually all
unregulated generator capacity scheduled to come into service on
line, totaling approximately 2,592 MW of capacity of which 2,273
MW is considered firm. The following table shows the payments
for fixed capacity costs and energy the Company estimates it will
be obligated to make under these contracts. The payments are
subject to the tested capacity and availability of the
facilities, scheduling and price escalation.
(In thousands of dollars)
Fixed
Year Costs Energy Total
1995 $ 201,000 $ 840,000 $ 1,041,000
1996 232,000 859,000 1,091,000
1997 246,000 906,000 1,152,000
1998 269,000 944,000 1,213,000
1999 271,000 991,000 1,262,000
/TABLE
The fixed costs relate to contracts with 10 facilities where
the Company is required to make fixed payments, including
payments when a facility is not operating but available for
service. These 10 facilities account for approximately 708 MW of
capacity, with contract lengths ranging from 20 to 35 years. The
terms of these contracts allow the Company to schedule energy
deliveries from the facilities and then pay for the energy
delivered. The Company estimates the fixed payments under these
contracts will aggregate to approximately $7.5 billion over their
terms. Contracts relating to the remaining facilities in service
at December 31, 1994, require the Company to pay only when energy
is delivered. The Company currently recovers both capacity and
energy payments to unregulated generators through base rates
and/or through the FAC. The Company has proposed to recover such
costs through the FAM beginning in 1995.
The Company paid approximately $960 million, $736 million
and $543 million in 1994, 1993 and 1992 for 14,794,000 mwhrs,
11,720,000 mwhrs and 8,632,000 mwhrs, respectively, of electric
power under all unregulated generator contracts.
In an effort to reduce the costs associated with unregulated
generators, at December 31, 1994, the Company had agreed to buy
out 15 projects consisting of 453 MW of capacity. See Note 2 -
Rate and Regulatory Issues and Contingencies and Note 5 -
Capitalization. Additionally, the Company has entered into
agreements with 41 projects, comprising 1,153 MW of capacity,
which allow the Company to curtail purchases from these
unregulated generators when demand is low. The Company expects
to continue efforts of these types into the future, to control
its power supply and related costs, but at this time cannot
predict the outcome of such efforts.
SALE OF CUSTOMER RECEIVABLES: The Company has an agreement
whereby it can sell an undivided interest in a designated pool of
customer receivables, including accrued unbilled electric
revenues, up to a maximum of $200 million. At December 31, 1994
and 1993, respectively, $200 million of receivables had been sold
under this agreement. The undivided interest in the designated
pool of receivables was sold with limited recourse. The
agreement provides for a loss reserve pursuant to which
additional customer receivables are assigned to the purchaser to
protect against bad debts. To the extent actual loss experience
of the pool receivables exceeds the loss reserve, the purchaser
absorbs the excess. For receivables sold, the Company has
retained collection and administrative responsibilities as agent
for the purchaser. As collections reduce previously sold
undivided interests, new receivables are customarily sold.
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 Federal income tax liability by
approximately $80 million, before assessment of penalties and
interest. Included in these proposed adjustments are several
significant issues involving 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 PSC in 1990, to the extent the IRS is able
to sustain adjustments, the Company will be required to absorb a
portion of any assessment. The Company believes any such
disallowance will not have a material impact on its financial
position or results of operations.
LITIGATION: In March 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
plaintiff sought enforcement of the original contract or
compensatory and punitive damages in an aggregate amount that
would not exceed $1 billion, excluding pre-judgment interest.
In July 1994, the New York Supreme Court dismissed Inter-
Power's complaint for lack of merit and denied Inter-Power's
cross-motion to compel disclosure. In August 1994, Inter-Power
filed a notice of appeal of this decision which was rejected.
Inter-Power is pursuing further appeals of this decision.
The Company believes it has meritorious defenses and will continue to
defend the lawsuit vigorously.
In November 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. In January 1994, the defendants filed
a joint motion to dismiss Fourth Branch's complaint. This motion
has yet to be decided. The Company understands that Fourth
Branch has filed for bankruptcy.
In October 1994, Fourth Branch petitioned the PSC to direct
the Company to sell the Mechanicville facility to Fourth Branch
for fair value and to relinquish its FERC license, or in the
alternative, to require the Company to turn over to Fourth Branch
its rate base investment in the plant. The Company has opposed
this petition.
The Medina Power Company is an independent power project
with a contract requiring it to be a qualifying facility (QF)
under federal law or face a contractual penalty. Having come on-
line without a steam host, Medina did not meet this QF
requirement, subjecting it to a 15% rate reduction. The Company
advised Medina that it had exercised its contract right and
reduced the rate accordingly. Medina is seeking $40 million in
compensatory damages, a trebling of this amount to $120 million
under the New York State antitrust laws, and $100 million in
punitive damages. The Company believes Medina's case is without
merit, but cannot predict the outcome of this action.
The Company is involved in a number of court cases regarding
the price of energy it is required to purchase in excess of
contract levels from certain unregulated generators
("overgeneration"). The Company has paid the unregulated
generators based on its long-run avoided cost for all such
overgeneration rather than the price which the unregulated
generators contend is applicable under the contracts. The
Company cannot predict the outcome of these actions, but will
continue to aggressively press its position.
The Company believes it has meritorious defenses and intends
to defend these lawsuits vigorously, but can neither provide any
judgment regarding the likely outcome nor provide any estimate or
range of possible loss.
ENVIRONMENTAL CONTINGENCIES: The public utility industry
typically utilizes and/or generates in its operations a broad
range of potentially hazardous wastes and by-products. 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 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 certain properties require investigation and has
prioritized the sites to enhance the management of investigation
and remediation, if necessary.
The Company is currently aware of 89 sites with which it has
been or may be associated, including 47 which are Company-owned.
With respect to non-owned sites, the Company may be required to
contribute some proportionate share of remedial costs.
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 are completed, the Company expects to determine
site-specific remedial actions and to estimate the attendant
costs for restoration. However, since technologies are still
developing and the Company has not yet undertaken any full-scale
remedial actions 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.
Estimates of the cost of remediation and post-remedial
monitoring are based upon a variety of factors, including
identified or potential contaminants, location, size and use of
the site, proximity to sensitive resources, status of regulatory
investigation and knowledge of activities at similarly situated
sites and the Environmental Protection Agency (EPA) figure for
average cost to remediate a site. Actual Company expenditures
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 Potentially Responsible Party
(PRP) sites and is contesting liability accordingly.
As a consequence of site characterizations and assessments
completed to date and negotiations with PRPs, the Company has
accrued a liability of $240 million, representing the low end of
the range of its share of the estimated cost for investigation
and remediation. The potential high end of the range is
presently estimated at approximately $1 billion, including
approximately $500 million in the unlikely event the Company was
required to assume 100% responsibility at non-owned sites.
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. See Note 2 - Rate and Regulatory
Issues and Contingencies. Rate agreements in effect since 1991
provide for recovery of anticipated investigation and remediation
expenditures. The Company has proposed in its multi-year rate
case net recovery of $13.5 million for 1995 for site
investigation and remediation. The 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 current 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 is currently providing notices of insurance
claims to carriers with respect to the investigation and
remediation costs for manufactured gas plant, industrial waste
sites and sites for which the Company has been identified as a
PRP. The Company is unable to predict whether such insurance
claims will be successful.
NOTE 10. DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
---------------------------------------------------------------
The following methods and assumptions were used to estimate
the fair value of each class of financial instruments:
CASH AND SHORT-TERM INVESTMENTS: The carrying amount
approximates fair value because of the short maturity of the
financial instruments.
LONG-TERM INVESTMENTS: The carrying value and market value are
not material to the financial statements.
SHORT-TERM DEBT: The carrying amount approximates fair value
because of the short-term nature of the borrowings.
MANDATORILY REDEEMABLE PREFERRED STOCK: Fair value of the
mandatorily redeemable preferred stock has been determined by one
of the Company's brokers.
LONG-TERM DEBT: The fair value of the Company's long-term debt
has been estimated by one of the Company's brokers. The carrying
value of NYSERDA bonds and other long-term debt are considered to
approximate fair value.
The financial instruments held or issued by the Company are
for purposes other than trading. The estimated fair values of
the Company's financial instruments are as follows:
(In thousands of dollars)
At December 31, 1994 1993
Carrying Carrying
Amount Fair Value Amount Fair Value
Cash and short-term investments $ 94,330 $ 94,330 $ 124,351 $ 124,351
Short-term debt 416,750 416,750 368,016 368,016
Mandatorily redeemable preferred 266,950 277,072 150,400 155,326
stock
Long-Term debt: First Mortgage Bonds 2,611,305 2,367,755 2,791,305 2,969,228
Medium Term Notes 45,000 45,783 55,500 62,458
NYSERDA bonds 413,760 413,760 413,760 413,760
Swiss franc bond 50,000 83,682 50,000 73,794
Other 224,107 224,107 131,587 131,587
/TABLE
In addition, off balance sheet financial instruments,
consisting of a currency exchange agreement used to fully hedge
against currency exchange rate fluctuations related to the Swiss
Franc bond, had a fair value of $31.7 and $20.1 million at
December 31, 1994 and 1993, respectively. As a result of this
agreement, at December 31, 1994, the Company's net obligation due
at maturity on December 15, 1995, of the Swiss Franc bond is
estimated to be approximately $50 million.
On January 1, 1994, the Company adopted Statement of
Financial Accounting Standards No. 115, "Accounting for Certain
Investments in Debt and Equity Securities." This statement
addresses the accounting and reporting for investments in equity
securities that have readily determinable fair values and for all
investments in debt securities. The Company's investments in
debt and equity securities are held in trust funds for the
purpose of funding the nuclear decommissioning of Unit 1 and its
share of Unit 2. See Note 3 - "Nuclear Plant Decommissioning".
The Company has classified all investments in debt and equity
securities as available for sale and has recorded all such
investments at their fair market value at December 31, 1994. The
proceeds from the sale of investments were $104.6 million in
1994. Using the specific identification method to determine
cost, the gross realized gains and gross realized losses on those
sales were $1.1 and $1.6 million, respectively. Net realized and
unrealized gains and losses are reflected in Accumulated
Depreciation and Amortization on the Balance Sheet, which is
consistent with the method used by the Company to account for the
decommissioning costs recovered in rates. The recorded fair
values and cost basis of the Company's investments in debt and
equity securities is as follows:
At December 31, 1994
(In thousands of dollars)
Security Gross Unrealized
Type Cost Gain Loss Fair Value
U.S.
Government $15,165 $ 19 $ (325) $14,859
Obligations
Tax Exempt
Obligations 45,029 659 (1,778) 43,910
Corporate 27,407 9 (1,253) 26,163
Obligations
Other 8,121 28 (348) 7,801
$95,722 $715 $(3,704) $92,733
/TABLE
The contractual maturities of the Company's investments in
debt securities is as follows:
At December 31, 1994
(In thousands of dollars)
Fair Value Cost
1 year to 5 years $11,197 $11,429
5 years to 10 years 20,111 20,778
Due after 10 years 57,689 59,591
/TABLE
NOTE 11. INFORMATION REGARDING THE ELECTRIC AND GAS BUSINESSES
---------------------------------------------------------------
The Company is engaged in the electric and natural gas
utility businesses. Certain information regarding these segments
is set forth in the following table. General corporate expenses,
property common to both segments and depreciation of such common
property have been allocated to the segments in accordance with
the practice established for regulatory purposes. Identifiable
assets include net utility plant, materials and supplies,
deferred finance charges, deferred recoverable energy costs and
certain other regulatory and other assets. Corporate assets
consist of other property and investments, cash, accounts
receivable, prepayments, unamortized debt expense and certain
other regulatory and other assets.
In thousands of dollars
1994 1993 1992
Operating revenues:
Electric . . . . . . . . $3,528,987 $3,332,464 $3,147,676
Gas . . . . . . . . . . . 623,191 600,967 553,851
Total . . . . . . . . . $4,152,178 $3,933,431 $3,701,527
Operating income before taxes:
Electric . . . . . . . . $ 466,978* $ 625,852 $ 645,696
Gas . . . . . . . . . . . 83,229 61,163 61,863
Total . . . . . . . . . $ 550,207 $ 687,015 $ 707,559
Pretax operating income, including AFC:
Electric . . . . . . . . $ 475,694 $ 641,435 $ 666,269
Gas . . . . . . . . . . . 83,592 61,812 62,721
Total . . . . . . . . . 559,286 703,247 728,990
Income taxes, included in operating expenses:
Electric . . . . . . . . 97,417 148,695 176,901
Gas . . . . . . . . . . . 20,417 13,820 6,332
Total . . . . . . . . . 117,834 162,515 183,233
Other (income) and deductions (21,410) (22,475) (11,391)
Interest charges . . . . . . 285,878 291,376 300,716
Net income . . . . . . . . . $ 176,984 $ 271,831 $ 256,432
Depreciation and amortization:
Electric . . . . . . . . $ 283,694 $ 255,718 $ 255,256
Gas . . . . . . . . . . . 24,657 20,905 18,834
Total . . .. . . . . . $ 308,351 $ 276,623 $ 274,090
Construction expenditures
(including nuclear fuel):
Electric . . . . . . . . $ 376,159 $ 429,265 $ 442,741
Gas . . . . . . . . . . . 113,965 90,347 59,503
Total . . . . . . . . . $ 490,124 $ 519,612 $ 502,244
Identifiable assets:
Electric . . . . . . . . $7,162,118 $7,042,762 $7,000,659
Gas . . . . . . . . . . . 1,009,566 926,648 783,766
Total . . . . . . . . . 8,171,684 7,969,410 7,784,425
Corporate assets . . . . 1,477,755 1,501,917 806,110
Total assets . . . . . $9,649,439 $9,471,327 $8,590,535
* Includes $196,625 of VERP expenses.
/TABLE
NOTE 12. QUARTERLY FINANCIAL DATA (UNAUDITED)
----------------------------------------------
Operating revenues, operating income, net income and earnings
per common share by quarters from 1994, 1993 and 1992, respectively,
are shown in the following table. The Company, in its opinion, has
included all adjustments necessary for a fair presentation of
the results of operations for the quarters. Due to the seasonal
nature of the utility business, the annual amounts are not generated
evenly by quarter during the year. 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 in the winter.
In thousands of dollars
Operating Net
Quarter Operating income income Earnings
Ended revenues (loss) (loss) (loss)
per
common
share
December 31, 1994 $1,018,110 $(10,536) $ (77,422) $ (.61)
1993 988,195 95,623 30,955 .16
1992 963,629 119,181 41,835 .24
September 30, 1994 $ 918,810 $108,937 $ 48,383 $ .27
1993 879,952 108,539 48,595 .29
1992 822,530 89,658 40,401 .23
June 30, 1994 $ 979,700 $130,624 $ 67,559 $ .42
1993 929,245 132,669 65,325 .41
1992 881,427 137,515 71,734 .46
March 31, 1994 $1,235,558 $203,348 $ 138,464 $ .92
1993 1,136,039 187,669 126,956 .86
1992 1,033,941 177,972 102,462 .68
In the fourth quarter of 1994 the Company recorded $196.6 million
($.89 per common share) for the electric expense allocation of the
VERP. In the second quarter of 1992, the third quarter of 1993,
and the fourth quarter of 1994 the Company recorded $22.8 million
($.11 per common share), $10.3 million ($.05 per common share) and
$12.3 million ($.06 per common share), respectively, for MERIT
earned in accordance with the 1991 Agreement. In the first and
fourth quarters of 1992 the Company recorded $21 million ($.09 per
common share) and $24 million ($.09 per common share), respectively,
to writedown its subsidiary investment in oil and gas properties.
ELECTRIC AND GAS STATISTICS
---------------------------
ELECTRIC CAPABILITY
Thousands of kilowatts
December 31, 1994 % 1993 1992
Owned:
Coal 1,285 16.0 1,285 1,285
Oil 646 8.1 1,496 1,496
Dual Fuel - Oil/Gas 700 8.7 700 700
Nuclear 1,048 13.1 1,048 1,059
Hydro 700 8.7 700 706
Natural Gas - - 74 108
4,379 54.6 5,303 5,354
Purchased:
New York Power Authority (NYPA)
- Hydro 1,300 16.2 1,302 1,302
- Nuclear 74 0.9 65 67
Unregulated generators 2,273 28.3 2,253 1,549
3,647 45.4 3,620 2,918
Total capability * 8,026 100.0 8,923 8,272
Electric peak load 6,458 6,191 6,205
* Available capability can be increased during heavy load periods by
purchases from neighboring interconnected systems. Hydro station
capability is based on average December stream-flow conditions.
/TABLE
ELECTRIC STATISTICS
-------------------
1994 1993 1992
Electric sales (Millions of kw-hrs.):
Residential . . . . . . . . . . . . . . . 10,415 10,475 10,392
Commercial . . . . . . . . . . . . . . . 11,813 12,079 11,628
Industrial . . . . . . . . . . . . . . . 7,445 7,088 7,477
Industrial-Special. . . . . . . . . . . . 4,118 3,888 3,857
Municipal service . . . . . . . . . . . . 215 220 227
Other electric systems. . . . . . . . . . 7,593 3,974 3,030
41,599 37,724 36,611
Electric revenues (Thousands of dollars):
Residential . . . . . . . . . . . . . . . $1,233,007 $1,171,787 $1,096,418
Commercial . . . . . . . . . . . . . . . 1,272,234 1,241,743 1,160,643
Industrial . . . . . . . . . . . . . . . 577,473 553,921 589,258
Industrial-Special. . . . . . . . . . . . 49,217 42,988 39,409
Municipal service . . . . . . . . . . . . 50,007 50,642 50,327
Other electric systems . . . . . . . . . 167,131 105,044 93,283
Miscellaneous . . . . . . . . . . . . . . 179,918 166,339 118,338
$3,528,987 $3,332,464 $3,147,676
Electric customers (Average):
Residential . . . . . . . . . . . . . . . 1,405,343 1,398,756 1,389,470
Commercial. . . . . . . . . . . . . . . . 144,249 143,078 142,345
Industrial. . . . . . . . . . . . . . . . 2,105 2,132 2,197
Industrial-Special. . . . . . . . . . . . 82 76 72
Other . . . . . . . . . . . . . . . . . . 2,318 3,438 3,262
1,554,097 1,547,480 1,537,346
Residential (Average):
Annual kw-hr. use per customer. . . . . . 7,411 7,489 7,479
Cost to customer per kw-hr (in cents) . . 11.84 11.19 10.55
Annual revenue per customer . . . . . . . $877.37 $837.74 $789.09
/TABLE
GAS STATISTICS
1994 1993 1992
Gas Sales (Thousands of dekatherms):
Residential . . . . . . . . . . . . . . 56,491 54,908 53,945
Commercial . . . . . . . . . . . . . . 25,783 23,743 22,289
Industrial . . . . . . . . . . . . . . 3,097 4,316 1,772
Other gas systems . . . . . . . . . . . 244 234 1,190
Total sales . . . . . . . . . . . 85,615 83,201 79,196
Spot market . . . . . . . . . . . . . . 1,572 13,223 1,146
Transportation of customer-owned gas . 85,910 67,741 65,845
Total gas delivered . . . . . . . 173,097 164,165 146,187
Gas Revenues (Thousands of dollars):
Residential . . . . . . . . . . . . . . $398,257 $370,565 $354,429
Commercial . . . . . . . . . . . . . . 159,157 144,834 132,609
Industrial . . . . . . . . . . . . . . 14,602 18,482 10,001
Other gas systems . . . . . . . . . . . 1,159 1,066 4,737
Spot market . . . . . . . . . . . . . . 4,370 29,782 2,576
Transportation of customer-owned gas . 38,346 34,843 42,726
Miscellaneous . . . . . . . . . . . . . 7,300 1,395 6,773
$623,191 $600,967 $553,851
Gas Customers (Average):
Residential . . . . . . . . . . . . . . 463,933 455,629 446,571
Commercial . . . . . . . . . . . . . . 40,256 39,662 38,675
Industrial . . . . . . . . . . . . . . 256 233 234
Other . . . . . . . . . . . . . . . . . 1 1 1
Transportation . . . . . . . . . . . . 661 673 673
505,107 496,198 486,154
Residential (Average):
Annual dekatherm use per customer . . . 121.8 120.5 120.8
Cost to customer per dekatherm . . . . $7.05 $6.75 $6.57
Annual revenue per customer . . . . . . $858.44 $813.30 $793.67
Maximum day gas sendout (dekatherms) . 995,801 929,285 905,872
/TABLE
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure.
The Company has nothing to report for this item.
PART III
The information required by Part III of this Form 10-K, Item
10 (Directors, Executive Officers, Promoters and Control Persons
of the Registrant), Item 11 (Executive Compensation), Item 12
(Security Ownership of Certain Beneficial Owners and Management)
and Item 13 (Certain Relationships and Related Transactions) is
incorporated by reference to such information appearing in the
definitive Proxy Statement dated March 21, 1995, filed with the
Securities and Exchange Commission in connection with the
Company's 1995 Annual Meeting of Shareholders. Further
information regarding Executive Officers as required under Item
10 (Directors, Executive Officers, Promoters and Control Persons
of the Registrant) appears at the end of Part I of this Form 10-K
Annual Report.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K.
(a) Certain documents filed as part of the Form 10-K.
(1) INDEX OF FINANCIAL STATEMENTS
Report of Independent Accountants
Consolidated Statements of Income and Retained Earnings for
each of the three years in the period ended December 31,
1994
Consolidated Balance Sheets at December 31, 1994 and 1993
Consolidated Statements of Cash Flows for each of the three
years in the period ended December 31, 1994
Notes to Consolidated Financial Statements
Separate financial statements of the Company have been
omitted since it is primarily an operating company and all
consolidated subsidiaries are wholly-owned directly or by
subsidiaries.
(2) The following financial statement schedules of the Company
for the years ended December 31, 1994, 1993 and 1992 are
included:
Report of Independent Accountants on Financial Statement
Schedule
Consolidated Financial Statement Schedule:
II--Valuation and Qualifying Accounts and Reserves
The Financial Statement Schedule above should be read in
conjunction with the Consolidated Financial Statements in
the 1994 Annual Report to Stockholders.
Schedules other than those mentioned above are omitted
because the conditions requiring their filing do not exist
or because the required information is given in the
financial statements, including the notes thereto.
(b) Reports on Form 8-K:
Form 8-K Reporting Date - January 4, 1995.
Items Reported - Item 5. Other Events.
Registrant filed certain information on Rate Case Status and
Competition/Restructuring.
Form 8-K Reporting Date - February 15, 1995.
Items Reported - Item 5. Other Events.
Registrant filed certain financial information substantially
constituting a portion of its 1994 Annual Report to
Stockholders including financial statements for the fiscal
year ended December 31, 1994.
(c) Exhibits.
See List of Exhibits.
(d) Financial Statement Schedule.
See (a)(2) above.
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
Niagara Mohawk Power Corporation
Our audits of the consolidated financial statements of Niagara
Mohawk Power Corporation referred to in our report dated February
1, 1995 appearing in this Form 10-K also included an audit of the
Financial Statement Schedule listed in Item 14(a) of this Form
10-K. In our opinion, this Financial Statement Schedule presents
fairly, in all material respects, the information set forth
therein when read in conjunction with the related consolidated
financial statements.
/s/ PRICE WATERHOUSE LLP
Syracuse, New York
February 1, 1995
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES Page 1 of 4
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(In Thousands of Dollars)
Column A Column B Column C Column D Column E
Additions
Balance Charged to Charged Balance
Beginning Costs and to Other at End
of Period Expenses Accounts Deductions of Period
Allowance for Doubtful
Accounts - deducted from
Accounts Receivable in
the Balance Sheet
1994 $3,600 $ 39,599 $ - $39,599 (a) $3,600
1993 3,600 37,200 - 37,200 (a) 3,600
1992 3,600 27,246 - 27,246 (a) 3,600
(a) Uncollectible accounts written off net of recoveries of $7,969,
$9,704 and $6,529 in 1994, 1993 and 1992, respectively.
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES Page 2 of 4
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(In Thousands of Dollars)
Column A Column B Column C Column D Column E
Additions
Balance at Charged to Charged Balance
Beginning Costs and to Other at End
Description of Period Expenses Accounts Deductions of Period
Reserve for Loss on
Investment -
NM Uranium, Inc. -
deducted from Utility
Plant, Nuclear Fuel
in the Balance Sheet
1994 $56,300 $ 1,900 $ - $ - $58,200
1993 53,000 3,300 - - 56,300
1992 53,000 - - - 53,000
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES Page 3 of 4
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(In Thousands of Dollars)
Column A Column B Column C Column D Column E
Additions
Balance
at Charged to Charged Balance
Beginning Costs and to Other at End
Description of Period Expenses Accounts Deductions of Period
Reserve for Loss on
oil and gas operations -
Opinac Energy Corp. -
deducted from
Other Property and
Investments in
the Balance Sheet
1994 $ - $ - $ - $ - $ -
1993 65,837 - - 65,837 (b) -
1992 22,500 44,958 - 1,621 (c) 65,837
(b) Represents the reversal of the total reserve upon sale of oil and gas operations in June 1993.
(c) Amortization of reserve related to sales of oil and gas on which loss was recorded.
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES Page 4 of 4
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(In Thousands of Dollars)
Column A Column B Column C Column D Column E
Additions
Balance
at Charged to Charged Balance
Beginning Costs and to Other at End
Description of Period Expenses Accounts Deductions of Period
Miscellaneous
Valuation Reserves
1994 $ 9,167 $ 20,030 $ - $ - $29,197 (d)
1993 1,407 7,760 - - 9,167
1992 - 1,407 - - 1,407
(d) The reserves relate to certain inventory and non-rate base properties.
NIAGARA MOHAWK POWER CORPORATION
List of Exhibits
In the following exhibit list, NMPC refers to the Company and
CNYP refers to Central New York Power Corporation. Each document
referred to below is incorporated by reference to the files of the
Commission, unless the reference to the document in the list is
preceded by an asterisk. Previous filings with the
Commission are indicated as follows:
A--NMPC Registration Statement No. 2-8214; C--NMPC Registration Statement No. 2-8634;
F--CNYP Registration Statement No. 2-3414;
G--CNYP Registration Statement No. 2-5490;
U--NMPC Registration Statement No. 2-10023;
V--NMPC Registration Statement No. 2-10501; W--NMPC Registration Statement No. 2-10875;
X--NMPC Registration Statement No. 2-12443;
Z--NMPC Registration Statement No. 2-13285;
AA--NMPC Registration Statement No. 2-13573;
BB--NMPC Registration Statement No. 2-14114; CC--NMPC Registration Statement No. 2-16193;
DD--NMPC Registration Statement No. 2-18995;
EE--NMPC Registration Statement No. 2-22904;
GG--NMPC Registration Statement No. 2-25526;
HH--NMPC Registration Statement No. 2-26918; II--NMPC Registration Statement No. 2-29575;
JJ--NMPC Registration Statement No. 2-35112;
KK--NMPC Registration Statement No. 2-38083;
LL--NMPC Registration Statement No. 2-42811;
MM--NMPC Registration Statement No. 2-45017; NN--NMPC Registration Statement No. 2-47044;
OO--NMPC Registration Statement No. 2-49570;
QQ--NMPC Registration Statement No. 2-51934;
SS--NMPC Registration Statement No. 2-52852;
TT--NMPC Registration Statement No. 2-54017; UU--NMPC Registration Statement No. 2-54291;
VV--NMPC Registration Statement No. 2-59500;
CCC--NMPC Registration Statement No. 2-70860;
DDD--NMPC Registration Statement No. 2-74165;
EEE--NMPC Registration Statement No. 2-79921; FFF--NMPC Registration Statement No. 2-81708;
GGG--NMPC Registration Statement No. 2-85366;
III--NMPC Registration Statement No. 2-90568;
KKK--NMPC Registration Statement No. 33-20847; MMM--NMPC Registration Statement No. 33-24755;
NNN--NMPC Registration Statement No. 33-27401;
OOO--NMPC Registration Statement No. 33-32475;
PPP--NMPC Registration Statement No. 33-38093;
QQQ--NMPC Registration Statement No. 33-47241; RRR--NMPC Registration Statement No. 33-59594;
SSS--NMPC Registration Statement No. 33-51073;
b--NMPC Annual Report on Form 10-K for year ended December 31,
1990; and
c--NMPC Annual Report on Form 10-K for year ended December 31,
1992; and
d--NMPC Annual Report on Form 10-K for year ended December 31,
1993.
INCORPORATION BY REFERENCE
EXHIBIT NO. DESCRIPTION OF INSTRUMENT PREVIOUS FILING PREVIOUS EXHIBIT DESIGNATION
*3(a)(1) --Certificate of Consolidation of New
York Power and Light Corporation,
Buffalo Niagara Electric Corporation
and Central New York Power Corporation,
filed in the office of the New York
Secretary of State, January 5, 1950.
*3(a)(2) --Certificate of Amendment of Certificate
of Incorporation of NMPC, filed in the
office of the New York Secretary of
State, January 5, 1950.
*3(a)(3) --Certificate of Amendment of Certificate
of Incorporation of NMPC, pursuant to
Section 36 of the Stock Corporation Law
of New York, filed August 22, 1952, in
the office of the New York Secretary
of State.
*3(a)(4) --Certificate of NMPC pursuant to Section
11 of the Stock Corporation Law of New
York filed May 5, 1954 in the office of
the New York Secretary of State.
*3(a)(5) --Certificate of Amendment of Certificate of
Incorporation of NMPC, pursuant to Section
36 of the Stock Corporation Law of New
York, filed January 9, 1957 in the office
of the New York Secretary of State.
*3(a)(6) --Certificate of NMPC pursuant to Section
11 of the Stock Corporation Law of New
York, filed May 22, 1957 in the office of
the New York Secretary of State.
*3(a)(7) --Certificate of NMPC pursuant to Section
11 of the Stock Corporation Law of New
York, filed February 18, 1958 in the office
of the New York Secretary of State.
*3(a)(8) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed May 5, 1965 in the office
of the New York Secretary of State.
*3(a)(9) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law
of New York, filed August 24, 1967 in
the office of the New York Secretary
of State.
*3(a)(10) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed August 19, 1968 in the
office of the New York Secretary of State.
*3(a)(11) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed September 22, 1969 in
the office of the New York Secretary
of State.
*3(a)(12) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed May 12, 1971 in the
office of the New York Secretary of
State.
*3(a)(13) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed August 18, 1972 in the
office of the New York Secretary of State.
*3(a)(14) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed June 26, 1973 in the
office of the New York Secretary of State.
*3(a)(15) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed May 9, 1974 in the
office of the New York Secretary of State.
*3(a)(16) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed March 12, 1975 in the
office of the New York Secretary of State.
*3(a)(17) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed May 7, 1975 in the
office of the New York Secretary of State.
*3(a)(18) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed August 27, 1975 in the
office of the New York Secretary of State.
*3(a)(19) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York, filed May 7, 1976 in the
office of the New York Secretary of State.
*3(a)(20) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed September 28, 1976 in the
office of the New York Secretary of State.
*3(a)(21) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed January 27, 1978 in the
office of the New York Secretary of State.
*3(a)(22) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed May 8, 1978 in the
office of the New York Secretary of State.
*3(a)(23) --Certificate of Correction of the
Certificate of Amendment filed May 7,
1976 of the Certificate of Incorporation
under Section 105 of the Business
Corporation Law of New York filed
July 13, 1978 in the office of the
New York Secretary of State.
*3(a)(24) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed July 17, 1978 in the
office of the New York Secretary of State.
*3(a)(25) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed March 3, 1980 in the
office of the New York Secretary of State.
*3(a)(26) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed March 31, 1981 in the
office of the New York Secretary of State.
*3(a)(27) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed March 31, 1981 in the
office of the New York Secretary of State.
*3(a)(28) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed April 22, 1981 in the
office of the New York Secretary of State.
*3(a)(29) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed May 8, 1981 in the office
of the New York Secretary of State.
*3(a)(30) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed April 26, 1982 in the
office of the New York Secretary of State.
*3(a)(31) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed January 24, 1983 in the
office of the New York Secretary of State.
*3(a)(32) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed August 3, 1983 in the
office of the New York Secretary of State.
*3(a)(33) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed December 27, 1983 in the
office of the New York Secretary of State.
*3(a)(34) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed December 27, 1983 in the
office of the New York Secretary of State.
*3(a)(35) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed June 4, 1984 in the
office of the New York Secretary of State.
*3(a)(36) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed August 29, 1984 in the
office of the New York Secretary of State.
*3(a)(37) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed April 17, 1985, in the
office of the New York Secretary of State.
*3(a)(38) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed May 3, 1985, in the
office of the New York Secretary of State.
*3(a)(39) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed December 24, 1986 in the
office of the New York Secretary of State.
*3(a)(40) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed June 1, 1987 in the
office of the New York Secretary of State.
*3(a)(41) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed July 16, 1987 in the
office of the New York Secretary of State.
*3(a)(42) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed May 27, 1988 in the
office of the New York Secretary of State.
*3(a)(43) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed September 27, 1990 in the
office of the New York Secretary of State.
*3(a)(44) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed October 18, 1991 in the
office of the New York Secretary of State.
*3(a)(45) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed May 5, 1994 in the
office of the New York Secretary of State.
*3(a)(46) --Certificate of Amendment of Certificate
of Incorporation of NMPC under Section
805 of the Business Corporation Law of
New York filed August 5, 1994 in the
office of the New York Secretary of State.
*3(b) --By-Laws of NMPC.
*4(b) --Agreement to furnish certain debt instruments.
4(1) --Mortgage Trust Indenture dated as of
October 1, 1937 between NMPC (formerly
CNYP) and Marine Midland Bank, N.A.
(formerly named The Marine Midland Trust
Company of New York), as Trustee. F **
_______________________
** Filed October 15, 1937 after effective date of Registration Statement No. 2-3414.
4(2) --Supplemental Indenture dated as of
December 1, 1938, supplemental to
Exhibit 4(1). VV 2-3
4(3) --Supplemental Indenture dated as of
April 15, 1939, supplemental to
Exhibit 4(1). VV 2-4
4(4) --Supplemental Indenture dated as of
July 1, 1940, supplemental to
Exhibit 4(1). VV 2-5
4(5) --Supplemental Indenture dated as of
January 1, 1942, supplemental to
Exhibit 4(1). VV 2-6
4(6) --Supplemental Indenture dated as of
October 1, 1944, supplemental to
Exhibit 4(1). G 7-6
4(7) --Supplemental Indenture dated as of
June 1, 1945, supplemental to
Exhibit 4(1). VV 2-8
4(8) --Supplemental Indenture dated as of
August 17, 1948, supplemental to
Exhibit 4(1). VV 2-9
4(9) --Supplemental Indenture dated as of
December 31, 1949, supplemental to
Exhibit 4(1). A 7-9
4(10) --Supplemental Indenture dated as of
January 1, 1950, supplemental to
Exhibit 4(1). A 7-10
4(11) --Supplemental Indenture dated as of
October 1, 1950, supplemental to
Exhibit 4(1). C 7-11
4(12) --Supplemental Indenture dated as of
October 19, 1950, supplemental to
Exhibit 4(1). C 7-12
4(13) --Supplemental Indenture dated as of
December 1, 1951, supplemental to
Exhibit 4(1). U 4-25
4(14) --Supplemental Indenture dated as of
February 1, 1953, supplemental to
Exhibit 4(1). U 4-26
4(15) --Supplemental Indenture dated as of
February 20, 1953, supplemental to
Exhibit 4(1). V 4-16
4(16) --Supplemental Indenture dated as of
October 1, 1953, supplemental to
Exhibit 4(1). W 4-17
4(17) --Supplemental Indenture dated as of
August 1, 1954, supplemental to
Exhibit 4(1). X 4-18
4(18) --Supplemental Indenture dated as of
April 25, 1956, supplemental to
Exhibit 4(1). X 4-19
4(19) --Supplemental Indenture dated as of
May 1, 1956, supplemental to
Exhibit 4(1). X 4-20
4(20) --Supplemental Indenture dated as of
September 1, 1957, supplemental to
Exhibit 4(1). AA 2-21
4(21) --Supplemental Indenture dated as of
June 1, 1958, supplemental to
Exhibit 4(1). BB 2-22
4(22) --Supplemental Indenture dated as of
March 15, 1960, supplemental to
Exhibit 4(1). CC 2-23
4(23) --Supplemental Indenture dated as of
April 1, 1960, supplemental to
Exhibit 4(1). CC 2-24
4(24) --Supplemental Indenture dated as of
November 1, 1961, supplemental to
Exhibit 4(1). DD 4-26
4(25) --Supplemental Indenture dated as of
December 1, 1964, supplemental to
Exhibit 4(1). EE 2-26
4(26) --Supplemental Indenture dated as of
October 1, 1966, supplemental to
Exhibit 4(1). GG 2-27
4(27) --Supplemental Indenture dated as of
July 15, 1967, supplemental to
Exhibit 4(1). HH 4-29
4(28) --Supplemental Indenture dated as of
August 1, 1967, supplemental to
Exhibit 4(1). HH 4-30
4(29) --Supplemental Indenture dated as of
August 1, 1968, supplemental to
Exhibit 4(1). II 2-30
4(30) --Supplemental Indenture dated as of
December 1, 1969, supplemental to
Exhibit 4(1). JJ 2-31
4(31) --Supplemental Indenture dated as of
February 1, 1971, supplemental to
Exhibit 4(1). LL 2-32
4(32) --Supplemental Indenture dated as of
February 1, 1972, supplemental to
Exhibit 4(1). MM 2-33
4(33) --Supplemental Indenture dated as of
August 1, 1972, supplemental to
Exhibit 4(1). NN 2-34
4(34) --Supplemental Indenture dated as of
December 1, 1973, supplemental to
Exhibit 4(1). OO 2-35
4(35) --Supplemental Indenture dated as of
October 1, 1974, supplemental to
Exhibit 4(1). QQ 2-36
4(36) --Supplemental Indenture dated as of
March 1, 1975, supplemental to
Exhibit 4(1). SS 2-37
4(37) --Supplemental Indenture dated as of
August 1, 1975, supplemental to
Exhibit 4(1). UU 2-38
4(38) --Supplemental Indenture dated as of
March 15, 1977, supplemental to
Exhibit 4(1). VV 2-39
4(39) --Supplemental Indenture dated as of
August 1, 1977, supplemental to
Exhibit 4(1). CCC 4(b)(40)
4(40) --Supplemental Indenture dated as of
December 1, 1977, supplemental to
Exhibit 4(1). CCC 4(b)(41)
4(41) --Supplemental Indenture dated as of
March 1, 1978, supplemental to
Exhibit 4(1). CCC 4(b)(42)
4(42) --Supplemental Indenture dated as of
December 1, 1978, supplemental to
Exhibit 4(1). CCC 4(b)(43)
4(43) --Supplemental Indenture dated as of
September 1, 1979, supplemental to
Exhibit 4(1). CCC 4(b)(44)
4(44) --Supplemental Indenture dated as of
October 1, 1979, supplemental to
Exhibit 4(1). CCC 4(b)(45)
4(45) --Supplemental Indenture dated as of
June 15, 1980, supplemental to
Exhibit 4(1). CCC 4(b)(46)
4(46) --Supplemental Indenture dated as of
September 1, 1980, supplemental to
Exhibit 4(1). CCC 4(b)(47)
4(47) --Supplemental Indenture dated as of
March 1, 1981, supplemental to
Exhibit 4(1). DDD 4(b)(47)
4(48) --Supplemental Indenture dated as of
August 1, 1981, supplemental to
Exhibit 4(1). DDD 4(b)(48)
4(49) --Supplemental Indenture dated as of
March 1, 1982, supplemental to
Exhibit 4(1). KKK 4(b)(49)
4(50) --Supplemental Indenture dated as of
April 1, 1982, supplemental to
Exhibit 4(1). KKK 4(b)(50)
4(51) --Supplemental Indenture dated as of
June 1, 1982, supplemental to
Exhibit 4(1). KKK 4(b)(51)
4(52) --Supplemental Indenture dated as of
August 1, 1982, supplemental to
Exhibit 4(1). EEE 4(b)(52)
4(53) --Supplemental Indenture dated as of
November 1, 1982, supplemental to
Exhibit 4(1). FFF 4(b)(53)
4(54) --Supplemental Indenture dated as of
March 1, 1983, supplemental to
Exhibit 4(1). KKK 4(b)(54)
4(55) --Supplemental Indenture dated as of
May 1, 1983, supplemental to
Exhibit 4(1). KKK 4(b)(55)
4(56) --Supplemental Indenture dated as of
June 1, 1983, supplemental to
Exhibit 4(1). GGG 4(b)(56)
4(57) --Supplemental Indenture dated as of
March 1, 1984, supplemental to
Exhibit 4(1). III 4(b)(57)
4(58) --Supplemental Indenture dated as of
May 1, 1984, supplemental to
Exhibit 4(1). KKK 4(b)(58)
4(59) --Supplemental Indenture dated as of
July 1, 1984, supplemental to
Exhibit 4(1). KKK 4(b)(59)
4(60) --Supplemental Indenture dated as of
October 1, 1984, supplemental to
Exhibit 4(1). KKK 4(b)(60)
4(61) --Supplemental Indenture dated as of
January 1, 1985, supplemental to
Exhibit 4(1). KKK 4(b)(61)
4(62) --Supplemental Indenture dated as of
February 1, 1985, supplemental to
Exhibit 4(1). KKK 4(b)(62)
4(63) --Supplemental Indenture dated as of
February 15, 1985, supplemental to
Exhibit 4(1). KKK 4(b)(63)
4(64) --Supplemental Indenture dated as of
November 1, 1985, supplemental to
Exhibit 4(1). III 4(b)(64)
4(65) --Supplemental Indenture dated as of
June 1, 1986, supplemental to
Exhibit 4(1). KKK 4(b)(65)
4(66) --Supplemental Indenture dated as of
August 1, 1986, supplemental to
Exhibit 4(1). KKK 4(b)(66)
4(67) --Supplemental Indenture dated as of
October 1, 1986, supplemental to
Exhibit 4(1). KKK 4(b)(67)
4(68) --Supplemental Indenture dated as of
November 1, 1986, supplemental to
Exhibit 4(1). KKK 4(b)(68)
4(69) --Supplemental Indenture dated as of
July 1, 1987, supplemental to
Exhibit 4(1). KKK 4(b)(69)
4(70) --Supplemental Indenture dated as of
May 1, 1988, supplemental to
Exhibit 4(1). MMM 4(b)(70)
4(71) --Supplemental Indenture dated as of
February 1, 1989, supplemental to
Exhibit 4(1). NNN 4(b)(71)
4(72) --Supplemental Indenture dated as of
April 1, 1989, supplemental to
Exhibit 4(1). OOO 4(b)(72)
4(73) --Supplemental Indenture dated as of
October 1, 1989, supplemental to
Exhibit 4(1). OOO 4(b)(73)
4(74) --Supplemental Indenture dated as of
June 1, 1990, supplemental to
Exhibit 4(1). PPP 4(b)(74)
4(75) --Supplemental Indenture dated as of
November 1, 1990, supplemental to
Exhibit 4(1). PPP 4(b)(75)
4(76) --Supplemental Indenture dated as of
March 1, 1991, supplemental to
Exhibit 4(1). QQQ 4(b)(76)
4(77) --Supplemental Indenture dated as of
October 1, 1991, supplemental to
Exhibit 4(1). QQQ 4(b)(77)
4(78) --Supplemental Indenture dated as of
April 1, 1992, supplemental to
Exhibit 4(1). QQQ 4(b)(78)
4(79) --Supplemental Indenture dated as of
June 1, 1992, supplemental to
Exhibit 4(1). RRR 4(b)(79)
4(80) --Supplemental Indenture dated as of
July 1, 1992, supplemental to
Exhibit 4(1). RRR 4(b)(80)
4(81) --Supplemental Indenture dated as of
August 1, 1992, supplemental to
Exhibit 4(1). RRR 4(b)(81)
4(82) --Supplemental Indenture dated as of
April 1, 1993, supplemental to
Exhibit 4(1). SSS 4(b)(82)
4(83) --Supplemental Indenture dated as of
July 1, 1993, supplemental to
Exhibit 4(1). SSS 4(b)(83)
4(84) --Supplemental Indenture dated as of
September 1, 1993, supplemental to
Exhibit 4(1). SSS 4(b)(84)
4(85) --Supplemental Indenture dated as of
March 1, 1994, supplement to
Exhibit 4(1). d 4(b)(85)
*4(86) --Supplemental Indenture dated as of
July 1, 1994, supplement to
Exhibit 4(1).
4(87) --Agreement dated as of August 16, 1940,
between CNYP, The Chase National Bank
of the City of New York, as Successor
Trustee, and The Marine Midland Trust
Company of New York, as Trustee. G 7-23
10-1 --Agreement dated March 1, 1957 between
the Power Authority of the State of
New York and NMPC as to sale,
transmission and disposition of St.
Lawrence power. Z 13-11
10-2 --Agreement dated February 10, 1961
between the Power Authority of the
State of New York and NMPC as to sale,
transmission and disposition of
Niagara redevelopment power. DD 13-6
10-3 --Agreement dated July 26, 1961
between the Power Authority of the
State of New York and NMPC
supplemental to Exhibit 10-2. DD 13-7
10-4 --Agreement dated as of March 23, 1973
between the Power Authority of the
State of New York and NMPC as to
the sale, transmission and disposition
of Blenheim-Gilboa power. OO 5-8
10-5 --Agreement dated January 23, 1970
between Consolidated Gas Supply
Corporation (formerly named New York
State Natural Gas Corporation) and NMPC. KK 5-8
10-6a --New York Power Pool Agreement
dated as of February 1, 1974
between NMPC and six other New York
utilities and the Power Authority
of the State of New York. QQ 5-10
10-6b --New York Power Pool Agreement
dated as of April 27, 1975 between
NMPC and six other New York electric
utilities and the Power Authority of
the State of New York (the parties
to the Agreement have petitioned
the Federal Power Commission for an
order permitting such Agreement,
which increases the reserve factor
of all parties from .14 to .18,
to supersede the New York Power
Pool Agreement dated as of
February 1, 1974). TT 5-10b
10-7 --Agreement dated as of October 31, 1968
between NMPC, Central Hudson Gas &
Electric Corporation and Consolidated
Edison Company of New York, Inc. as
to Joint Electric Generating Plant
(the Roseton Station). JJ 5-10
10-8a --Memorandum of Understanding dated as
of May 30, 1975 between NMPC and
Rochester Gas & Electric Corporation
with respect to Oswego Unit No. 6. SS 5-13
10-8b --Memorandum of Understanding dated as
of May 30, 1975 between NMPC and
Rochester Gas and Electric Corporation
with respect to Oswego Unit No. 6. SS 5-13
10-8c --Basic Agreement dated as of September 22,
1975 between NMPC and Rochester Gas and
Electric Corporation with respect to
Oswego Unit No. 6. VV 5-13b
10-9a --Memorandum of Understanding dated
as of May 30, 1975 between NMPC and
four other New York electric utilities
with respect to Nine Mile Point Nuclear
Station Unit No. 2. SS 5-14
10-9b --Basic Agreement dated as of
September 22, 1975 between NMPC and
four other New York electric utilities
with respect to Nine Mile Point
Nuclear Station Unit No. 2. VV 5-14b
10-9c --Nine Mile Point Nuclear Station Unit
No. 2 Operating Agreement. c 10-19
10-10a --Memorandum of Understanding dated as
of May 16, 1974, as amended May 30,
1975, between NMPC and three other
New York electric utilities with respect
to the Sterling Nuclear Station. SS 5-15
10-10b --Basic Agreement dated as of
September 22, 1975 between NMPC and
three other New York electric utilities
with respect to the Sterling Nuclear
Stations. VV 5-15b
10-11 --NMPC Officers' Incentive Compensation Plan -
Plan Document.** b 10-16
10-12 --NMPC Management Incentive Compensation Plan -
Plan Document.** b 10-17
10-13 --NMPC 1990 Stock Award Plan.** b 10-18
10-14 --NMPC Deferred Compensation Plan.** d 10-16
10-15 --NMPC Performance Share Unit Plan.** d 10-17
10-16 --NMPC 1992 Stock Option Plan.** d 10-18
10-17 --Employment Agreement between NMPC and
William E. Davis, Chairman of the Board
and Chief Executive Officer, dated
January 1, 1993, including letter dated
January 24, 1994.** d 10-19
10-18 --Employment Agreement between NMPC and
John M. Endries, President, dated
January 1, 1993, including letter
dated January 24, 1994.** d 10-20
10-19 --Employment Agreement between NMPC and
B. Ralph Sylvia, Executive Vice
President, Nuclear, dated January 1,
1993, including letter dated
January 24, 1994.** d 10-21
10-20 --Employment Agreement between NMPC and
David J. Arrington, Sr. Vice President,
Human Resources, dated January 1, 1993,
including letter dated January 24, 1994.** d 10-22
10-21 --Employment Agreement between NMPC and
Darlene D. Kerr, Sr. Vice President,
Electric Customer Service, dated
January 1, 1994.** d 10-23
10-22 --Employment Agreement between NMPC and
Gary J. Lavine, Sr. Vice President,
Legal and Corporate Relations, dated
January 1, 1993, including letter
dated January 24, 1994.** d 10-24
10-23 --Employment Agreement between NMPC and
John W. Powers, Sr. Vice President,
Finance and Corporate Services, dated
January 1, 1993, including letter dated
January 24, 1994.** d 10-26
*10-23(a)--Amendment to employment agreement between
NMPC and John W. Powers, Sr. Vice
President, Finance and Corporate Services,
dated November 8, 1994.**
10-24 --Employment Agreement between NMPC and
Michael P. Ranalli, Sr. Vice President,
Electric Supply & Delivery, dated
January 1, 1993, including letter dated
January 24, 1994.** d 10-27
10-25 --Agreement for Consulting Services between
NMPC and William J. Donlon, effective
July 15, 1993.** d 10-28
*11 --Statement setting forth the computation of
average number of shares of common stock
outstanding.
*12 --Statements Showing Computations of Certain
Financial Ratios.
_______________________
** Required to be filed as an exhibit to Form 10-K pursuant to Item 14(a)(3) of Form
10-K.
*21 --Subsidiaries of the Registrant.
*23 --Consent of Price Waterhouse LLP,
independent accountants.
*27 --Financial Data Schedule, pursuant to
Item 601(c) of Regulation S-K.
99(1) --Form 11-K Annual Report of the Employee
Savings Fund Plan for Represented Employees
of Niagara Mohawk Power Corporation for To be filed at
Fiscal Year Ended December 31, 1994. a later date.
99(2) --Form 11-K Annual Report of the Employee
Savings Fund Plan for Non-represented
Employees of Niagara Mohawk Power
Corporation for Fiscal year ended To be filed at
December 31, 1994. a later date.
EXHIBITS 3(a)(1) THROUGH 3(a)(46) HAVE BEEN RESTATED IN ELECTRONIC
FORMAT FOR EDGAR FILING PURPOSES ONLY. DEFINITIVE COPIES OF THE
FOLLOWING DOCUMENTS ARE ON FILE WITH THE SECRETARY OF STATE OF THE
STATE OF NEW YORK.
CERTIFICATE OF CONSOLIDATION Exhibit 3(a)(1)
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
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
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
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
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
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;
(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
(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;
(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;
(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
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
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
(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,
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
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. 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 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 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
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 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
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.
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 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 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 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:
(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 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:
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
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.
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.
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.
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)
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)
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)
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.,
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;
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
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
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
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 AMENDMENT Exhibit 3(a)(2)
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
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 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 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
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 `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)".
"(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
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 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 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 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
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:
"(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.
"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
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
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.
"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
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:
(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 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.
"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
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 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
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 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 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
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
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";
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.
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.
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 AMENDMENT Exhibit 3(a)(3)
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
__________
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
_________
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 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.
"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.:
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
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
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
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.
__________
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)
CERTIFICATE Exhibit 3(a)(4)
of
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 11 of the Stock Corporation Law
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:
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
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 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
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
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
[CONFORMED] Exhibit 3(a)(5)
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
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
__________
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 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
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) 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
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
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.
"(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 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
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
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
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.
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
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] Exhibit 3(a)(6)
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 11 of the Stock Corporation Law
Dated: May 21, 1957
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
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,
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 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 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
(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
(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
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] Exhibit 3(a)(7)
CERTIFICATE
of
NIAGARA MOHAWK POWER CORPORATION
Pursuant to Section 11 of the Stock Corporation Law
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
_________
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 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,
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:
"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;
(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 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.:
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
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.
CERTIFICATE OF AMENDMENT Exhibit 3(a)(8)
of the
CERTIFICATE OF INCORPORATION
of
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
__________
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
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 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
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 AMENDMENT Exhibit 3(a)(9)
of
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
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
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
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 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:
(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 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 )
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
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 AMENDMENT Exhibit 3(a)(10)
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.
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 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
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
qualified in Onon. Co. No. 34-1158700
My Commission Expires March 30, 1969
[NOTARIAL SEAL]
[CONFORMED] Exhibit 3(a)(11)
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
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
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
(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;
(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.
"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.
"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 189to 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.
"(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,
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
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 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
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.
"(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 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
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
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
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]
(CONFORMED) Exhibit 3(a)(12)
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.
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
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.
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.
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] Exhibit 3(a)(13)
CERTIFICATE OF AMENDMENT
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
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".
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:
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
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
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
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.:
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] Exhibit 3(a)(14)
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
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
The name of the Corporation is Niagara Mohawk Power Corporation. It
was originally incorporated under the name of Niagara Hudson Public
Service Corporation.
III
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:
"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
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
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 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, 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
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,
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
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 Exhibit 3(a)(15)
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
Dated: May 7, 1974
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
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
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
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 )
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] Exhibit 3(a)(16)
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 805 of the Business Corporation Law
__________
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
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
(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 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
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 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 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 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 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,
SAMUEL R. MADISON /s/
Secretary
[CONFORMED COPY] Exhibit 3(a)(17)
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 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
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
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.
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.
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
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
CERTIFICATE OF AMENDMENT Exhibit 3(a)(18)
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
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.
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 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 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 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 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
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.
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
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] Exhibit 3(a)(19)
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 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
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.
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.
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 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
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 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 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 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
[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
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] Exhibit 3(a)(20)
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 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
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, 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 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:
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:
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 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 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.
(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
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.:
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.
By the Commission,
/s/ SAMUEL R. MADISON
Secretary
[SEAL OF THE COMMISSION]
[CONFORMED COPY] Exhibit 3(a)(21)
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
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.
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 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:
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 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
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 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 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%
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.
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
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]
[CONFORMED COPY] Exhibit 3(a)(22)
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
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
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 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.
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
CERTIFICATE OF CORRECTION Exhibit 3(a)(23)
of the
CERTIFICATE OF AMENDMENT
filed May 7, 1976
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 105 of the Business Corporation Law
Dated: May 25, 1978
LeBoeuf, Lamb, Leiby & MacRae
140 Broadway
New York, New York 10005
CERTIFICATE OF CORRECTION
of the
CERTIFICATE OF AMENDMENT
filed May 7, 1976
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
Under Section 105 of the Business Corporation Law
Pursuant to the provisions of Section 105 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
On May 4, 1976 the Shareholders authorized the reduction of the par
value of the
(i) then authorized but unissued Preferred Stock of the Corporation
from $100 to $25 per share, and
(ii) then authorized but unissued Preference Stock of the
Corporation from $100 to $25 per share.
On May 7, 1976 a Certificate of Amendment implementing the above
was filed in the office of the Secretary of State of New York (the
"1976 Amendment"). Under the 1976 Amendment the 2,400,000
previously authorized but unissued shares of Preferred Stock with a
par value of $100 each were 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 (no shares
of Preference Stock having been issued) were changed to 4,000,000
shares of Preference Stock with a par value of $25 each. Also the
provisions relating to the limited voting rights of the Preferred
Stock in subdivisions (E), (F) and (H) of Paragraph 5 of part D of
Article IV of the Certificate of Incorporation were 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 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. Paragraphs (1) and (6) of
Part D of Article IV of the Certificate of Incorporation, as
amended, empowered the Board of Directors to create various series
of Preferred Stock and Preference Stock, which were to be identical
in all respects except as to matters set forth in subdivisions
lettered (A) through (H). Subdivision (D) of such Paragraphs (1)
and (6) indicated that the sum payable per share upon voluntary or
involuntary dissolution, liquidation or winding up of the
Corporation were to be a stated amount but contained a
parenthetical clause indicating such stated amount would be not
less than $100.
Upon the filing of the 1976 Amendment the following parenthetical
reference to the $100 par value of
(i) the Preferred Stock in subdivision (D) of Paragraph (1) of Part
D of Article IV of the Certificate of Incorporation, as amended
(which Section is contained in the Certificate of Amendment filed
January 5, 1950-the "1950 Amendment"); and
(ii) the Preference Stock in subdivision (D) of Paragraph (6) of
part D of Article IV of the Certificate of Incorporation, as
amended (which Section is contained in the Certificate of Amendment
filed September 22, 1969-the (1969 Amendment")in each case became
erroneous on the face thereof in that the 1976 Amendment did not
specifically provide for conforming changes in such references.
IV
This Certificate of Correction is filed to correct the 1976
Amendment by correcting the aforesaid incorrect references.
The incorrect reference in the 1950 Amendment to be corrected by
the 1976 Amendment is as follows:
"(not less than $100 per share)"
and the same is hereby corrected to read as follows:
"(not less than $25 per share)"
The incorrect reference in the 1969 Amendment to be corrected by
the 1976 Amendment is as follows:
"(not less than $100)"
and the same is hereby corrected to read as follows:
"(not less than $25)"
V
The stated capital of the Corporation will not be reduced by this
Certificate of Correction to the Certificate of Incorporation of
the Corporation.
VI
The 1976 Amendment and the provisions of this Certificate of
Correction were 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 therein 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 25th day of May, 1978.
___________________________________/s/
John H. Terry
Senior Vice President
[Corporate Seal]
__________________________________/s/
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
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
day of May, 1978
___________________________________/s/
Notary Public
[CONFORMED COPY] Exhibit 3(a)(24)
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 17, 1978
Tax $ None
Filing Fee $30
By Mario M. Cuomo
Secretary of State
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
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".
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:
(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
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:
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 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 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
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
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/
(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
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]
[CONFORMED COPY] Exhibit 3(a)(25)
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
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 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 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".
(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 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:
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, 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 (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 (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.
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
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]
12.25% Series Exhibit 3(a)(26)
[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
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."
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 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 (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:
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, 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.
(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 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
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
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]
12.50% Series Exhibit 3(a)(27)
[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
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."
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 January 5, 1950."
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 thirteenth additional series of Preferred Stock,
to consist of 620,000 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(M)(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, 12.50% Series
4(M) The number, designations, relative rights, preferences and
limitations of the thirteenth 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 thirteenth additional
series shall be 620,000 shares and the designation of such series
shall be "Preferred Stock, 12.50% Series".
(B) The dividend rate of the Preferred Stock, 12.50% Series shall
be twelve and fifty one-hundredths per cent (12.50%) 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, 12.50% Series
shall be cumulative from the date of the original issue thereof.
So long as any shares of the Preferred Stock, 12.50% 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, 12.50%
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,
12.50% 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, 12.50% 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, 12.50% Series shall
have no voting rights whatsoever.
(D) The sum per share for the Preferred Stock, 12.50% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $28.13 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:
For the Voluntary
Twelve Months Liquidation
Ended March 31, Price Per Share
1983...................................... $27.96
1984...................................... $27.80
1985...................................... $27.63
1986...................................... $27.47
1987...................................... $27.30
1988...................................... $27.14
1989...................................... $26.97
1990...................................... $26.81
1991...................................... $26.64
1992...................................... $26.48
1993...................................... $26.32
1994...................................... $26.15
1995...................................... $25.99
For the Voluntary
Twelve Months Liquidation
Ended March 31, Price Per Share
1996...................................... $25.82
1997...................................... $25.66
1998...................................... $25.49
1999...................................... $25.33
2000...................................... $25.16
2001...................................... $25.00
(E) The sum per share for the Preferred Stock, 12.50% 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, 12.50% 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, 1991 and prior to April 1, 1992 at a redemption price of $26.48
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 Price
Ended March 31, Per Share
1993.................................... $26.32
1994.................................... $26.15
1995.................................... $25.99
1996.................................... $25.82
1997.................................... $25.66
1998.................................... $25.49
1999.................................... $25.33
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, 12.50% Series pursuant to this subdivision (F) unless
simultaneously therewith the Corporation shall optionally redeem
shares of its Preferred Stock 12.25% Series having an aggregate par
value bearing the same proportion to the aggregate par value of all
outstanding shares of its Preferred Stock, 12.25% Series as the
aggregate par value of the shares of Preferred Stock 12.50% Series
so to be redeemed bears to the aggregate par value of all
outstanding shares of Preferred Stock, 12.50% Series.
(G) The shares of the Preferred Stock, 12.50% Series shall be
exchangeable on a share for share basis into other shares of
Preferred Stock, 12.50% 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, 12.50% 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,
12.50% Series are outstanding) 38,139 shares of the Preferred
Stock, 12.50% Series (or the number of the shares of the Preferred
Stock, 12.50% Series then outstanding if less than 38,139) and on
March 31, 2001 the balance of the shares of Preferred Stock, 12.50%
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, 12.50% Series pursuant to
subdivision (F) above, nor any purchase or other acquisition of any
shares of the Preferred Stock, 12.50% 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, 12.50% 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, 12.50%
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, 12.50% 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, 12.50% 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, 12.50% 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, 12.50% 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, 12.50% 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, 12.50% 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, 12.50% 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 30th day of March, 1981.
JOHN M. HAYNES
Senior Vice President
[CORPORATE SEAL] HAROLD J. BOGAN
Assistant Secretary
STATE OF NEW YORK )
COUNTY OF NEW YORK) 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
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 Service Commission dated March 26, 1981.
By the Commission,
SAMUEL R. MADISON
Secretary
[SEAL OF THE COMMISSION]
[CONFORMED COPY] Exhibit 3(a)(28)
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
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".
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 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 (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.
(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
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
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]
[CONFORMED COPY] Exhibit 3(a)(29)
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
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 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 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 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
[CONFORMED COPY] Exhibit 3(a)(30)
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
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".
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 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 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:
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.
(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
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 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 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 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.:
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
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] Exhibit 3(a)(31)
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
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
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".
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 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 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 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 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 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 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 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.
(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.
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
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]
[CONFORMED COPY] Exhibit 3(a)(32)
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
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 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 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:
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
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:
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 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 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
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 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]
$25 par value Exhibit 3(a)(33)
[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
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 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 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:
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.
(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, 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 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.
(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.
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
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]
$100 par value Exhibit 3(a)(34)
[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
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 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 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:
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 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
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 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 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 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
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]
[CONFORMED COPY] Exhibit 3(a)(35)
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
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 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-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
LINDA WOLNIAK
Notary Public in the State of New York
Qualified in Onondaga Co. No. 4607311
My Commission Expires March 30, 1985
[CONFORMED COPY] Exhibit 3(a)(36)
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
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
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 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 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 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 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 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 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 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.
(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 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 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
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
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] Exhibit 3(a)(37)
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
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
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:
"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 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 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 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.
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 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
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 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 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
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
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] Exhibit 3(a)(38)
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
NIAGARA MOHAWK POWER CORPORATION
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:
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:
"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 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 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 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
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
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, 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 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
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
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
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]
[CONFORMED COPY] Exhibit 3(a)(39)
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
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 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 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 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:
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
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
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 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 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
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] Exhibit 3(a)(40)
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 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.
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 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 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
(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
Qualified in Onondaga Co. No. 4684763
My Commission Expires March 30, 1988
[CONFORMED COPY] Exhibit 3(a)(41)
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
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 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) (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
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 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 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 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 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
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] Exhibit 3(a)(42)
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 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
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
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 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 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):
(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
(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 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 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 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.
(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 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;
(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."
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 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
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 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 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 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
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] Exhibit 3(a)(43)
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 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.
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 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.
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.
/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
[CONFORMED COPY] Exhibit 3(a)(44)
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
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 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
(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.
(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
(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 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 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]
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.
* * * *
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 Exhibit 3(a)(45)
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: May 5, 1994
Tax: $17,500.00
By JCC
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.
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:
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
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.
Harold J. Bogan
Secretary
Sworn to before me this
4th day of May, 1994.
Notary Public
[CONFORMED COPY] Exhibit 3(a)(46)
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: August 5, 1994
Tax: #None
Dated August 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 the Vice President-
Treasurer 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
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:
"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-sixth additional series of Preferred Stock,
to consist of 6,000,000 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 (4Z)
(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, 9-1/2% Series
(4Z) The number, designation, relative rights, preferences and
limitations of the twenty-sixth additional series of Preferred
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 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-sixth series
shall be 6,000,000 shares and the designation of such series shall
be "Preferred Stock, 9-1/2% Series".
(B) The dividend rate of the Preferred Stock, 9-1/2% Series shall
be nine and fifty one-hundredths percent (9-1/2%) 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, 9-1/2% 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, 1994.
So long as any shares of the Preferred Stock, 9-1/2% 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, 9-1/2% 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, 9-1/2% 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, 9-1/2% 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 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, 9-1/2% Series shall have no voting
rights whatsoever.
(D) The sum per share for the Preferred Stock, 9-1/2% Series
payable to the holders thereof upon the voluntary dissolution,
liquidation or winding up of the Corporation shall be $25 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, 9-1/2% 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 accumulated and unpaid
on such share to the date of payment, whether or not earned or
declared.
(F) The shares of the Preferred Stock, 9-1/2% 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, 1999 at the redemption price of $25 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.
(G) The shares of the Preferred Stock, 9-1/2% Series shall be
exchangeable on a share for share basis for other shares of
Preferred Stock, 9-1/2% Series, but shall not be convertible into
or exchangeable for other securities of the Corporation.
(H) In every case of the redemption of less than all of the
outstanding shares of Preferred Stock, 9-1/2% Series pursuant to
subdivision (F), above, the shares to be redeemed shall be chosen
by lot, in any manner deemed appropriate by the transfer agent of
the Preferred Stock, 9-1/2% Series, and such redemption shall
otherwise be in the manner prescribed under the heading "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 Article V of the 1950 Certificate of Amendment and subsequent
amendments.
(I) Shares of Preferred Stock, 9-1/2% 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 $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 Preferred Stock, 9-1/2% 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 4th day of August, 1994.
By /s/ Arthur W. Roos
ARTHUR W. ROOS
Vice President-Treasurer
By /s/ Kapua Rice
KAPUA RICE
Assistant Secretary
[Corporate Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF ONONDAGA )
ARTHUR W. ROOS. 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.
/s/ Arthur W. Roos
ARTHUR W. ROOS
Vice President-Treasurer
Sworn to before me this
4th day of August, 1994.
/s/ Bonnie E. Phillips
Notary Public
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
Albany, N.Y., August 5, 1994
CASE 93-M-0981 - Petition of Niagara Mohawk Power Corporation to
Issue and Sell Long-term Debt, Preferred Stock and Common Stock
Pursuant to a Multi-year Financing Plan and to Negotiate a
Revolving Credit Agreement.
* * * *
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 5, 1994, in accordance with the
order of the Public Service Commission issued and effective May 16,
1994.
By the Commission,
By /s/ William F. Barnes
William F. Barnes
Deputy Secretary
1 Exhibit 3(b)
BY-LAWS
NIAGARA MOHAWK POWER CORPORATION
ADOPTED JANUARY 5, 1950
(As December 8, 1994)
2
BY-LAWS
NIAGARA MOHAWK POWER CORPORATION
ADOPTED JANUARY 5, 1950
(As Amended December 8, 1994)
Index
Page Page
Additional Officers 9 Officers 7,8,9
Adjournments 2 Place of Meeting 2
Amendments 13 President 7
Annual Meeting 1 Procedure 2,5,13
Assistant Officers 8,9 Proxies 3
Audit Committee 6 Quorum 2,5
Bonds 9 Record Date 11
Certificates 11 Registrar 11
Chairman of the Board 7 Resignations 4
Committees 5,6 Scrip 12
Compensation 4,9 Secretary 8
Controller 8 Special Meetings 1,2
Corporate Charter 1 Stock 11,12
Corporate Seal 13 Stock Certificates 11
Directors 3 Stock Transfers 11
Directors' Meetings 4,5 Stockholders' Meetings 1
Executive Committee 6 Terms of Office 7
Finance Committee 6 Transfer Agent 11
Finances 12 Transfers of Stock 11
Fiscal Year 12 Treasurer 8,9
General Provisions 12 Vacancies 4
Indemnification; Insurance 9,10 Vice Presidents 7,8
Inspectors of Election 3 Voting 2,3
Lost Stock 12 Waiver of Notice 5
Notices of Meetings 2,5
/TABLE
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This Index does not constitute part of the By-Laws or have any
bearing upon the interpretation of their terms and provisions.
BY-LAWS OF NIAGARA MOHAWK POWER CORPORATION
ARTICLE I
BY-LAWS SUPPLEMENT CORPORATE CHARTER
Section 1. Corporate Charter: The provisions of these by-laws
supplement the corporate charter. The provisions of the latter
shall govern over the provisions of these by-laws in the event of
any conflict. Elections of directors and meetings of stockholders
in addition to those provided by these by-laws may be held in
accordance with the provisions of the corporate charter. The term
"corporate charter" as used in these by-laws includes the
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, filed in the Department of State
of the State of New York on July 31, 1937, all certificates
supplemental thereto or amendatory thereof or in restatement
thereof filed in the Department of State of the State of New York
(including specifically but without limitation among all such
supplemental or amendatory certificates heretofore filed or
hereafter to be filed, the Certificate of Change of Name of Niagara
Hudson Public Service Corporation to Central New York Power
Corporation, filed in the Department of State of the State of New
York on September 15, 1937, the Certificate of Consolidation of New
York Power and Light Corporation and Buffalo Niagara Electric
Corporation and 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, filed in the Department of State
of the State of New York on January 5, 1950, and the Certificate of
Amendment of Certificate of Incorporation of Niagara Mohawk Power
Corporation Pursuant to Sections 26-a and 36 of the Stock
Corporation Law, filed in the Department of State of the State of
New York on January 5,
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1950), and includes also all resolutions of the board of directors
fixing the designations, preferences, privileges and voting powers
of any series of stock of the corporation, and all other
instruments which are binding upon, and define or set forth the
rights of, the stockholders of the corporation.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting: The annual meeting of the stockholders
of the corporation for the election of directors and the
transaction of such other business as may properly come before it
shall be held on the first Tuesday in May in each year. If that
day be a legal holiday in any year, the meeting shall be held on
the next day following that is not a legal holiday.
Business properly brought before any such annual meeting shall
include matters specifically set forth in the corporation's proxy
statement with respect to such meeting, matters which the Chairman
of the Board of Directors in his sole discretion causes to be
placed on the agenda of any such annual meeting and (i) any
proposal of a stockholder of this corporation and (ii) any
nomination by a stockholder of a person or persons for election as
director or directors, if such stockholder has made a written
request to this corporation to have such proposal or nomination
considered at such annual meeting, as provided herein, and further
provided that such proposal or nomination is otherwise proper for
consideration under applicable law and the certificate of
incorporation and by-laws of the corporation.
Notice of any proposal to be presented by any stockholder or of the
name of any person to be nominated by any stockholder for election
as a director of the corporation must be received by the secretary
of the corporation at its principal executive office not less than
45 nor more than 90 days prior to the date of the annual meeting;
provided, however, that if the date of the annual meeting is first
publicly announced or disclosed (in a public filing or otherwise)
less than 55 days prior to the date of the meeting, such notice
shall be given not more than ten days after such date is first so
announced or disclosed. Public notice shall be deemed to have been
given more than 55 days in advance of the annual meeting if the
corporation shall have previously disclosed, in these by-laws or
otherwise, that the annual meeting in each year is to be held on a
determinable date, 5
unless and until the Board of Directors determines to hold the
meeting on a different date.
Any stockholder who gives notice of any such proposal shall deliver
therewith the text of the proposal to be presented and a brief
written statement of the reasons why such stockholder favors the
proposal and setting forth such stockholder's name and address, the
number and class of all shares of each class of stock of the
corporation beneficially owned by such stockholder and any material
interest of such stockholder in the proposal (other than as a
stockholder).
Any stockholder desiring to nominate any person for election as a
director of the corporation shall deliver with such notice a
statement in writing setting forth the name of the person to be
nominated, the number and class of all shares of each class of
stock of the corporation beneficially owned by such person, the
information regarding such person required by paragraphs (a), (e)
and (f) of Item 401 of Regulation S-K adopted by the Securities and
Exchange Commission (or the corresponding provisions of any
regulation subsequently adopted by the Securities and Exchange
Commission applicable to the corporation), such person's signed
consent to serve as a director of the corporation if elected, such
stockholder's name and address and the number and class of all
shares of each class of stock of the corporation beneficially owned
by such stockholder. As used herein, shares "beneficially owned"
shall mean all shares as to which such person, together with such
person's affiliates and associates (as defined in Rule 12b-2 under
the Securities Exchange Act of 1934), may be deemed to beneficially
own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, as well as all shares as to which such person,
together with such person's affiliates and associates, has the
right to become the beneficial owner pursuant to any agreement or
understanding, or upon the exercise of warrants, option or rights
to convert or exchange (whether such rights are exercisable
immediately or only after the passage of time or the occurrence of
conditions).
The person presiding at the meeting, in addition to making any
other determinations that may be appropriate to the conduct of the
meeting, shall determine whether such notice has been duly given
and shall direct that proposals and nominees not be considered if
such notice has not been so given.
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Section 2. Special Meetings: Special meetings of the stockholders
of the corporation may be called at any time by a majority of the
entire board of directors or by the Chairman of the Board or the
President. Such request shall state the purpose or purposes of the
proposed meeting.
Special meetings of stockholders for the election of directors in
accordance with the provisions of the corporate charter providing
for a special election of directors in the event of default in the
payment of dividends on the preferred stock or preference stock for
a specified period and on the termination of such default may be
called as provided in the corporate charter.
Section 3. Place and Notice of Stockholders' Meetings: Meetings of
Stockholders shall be held at the principal office of the
corporation in the City of Syracuse, New York, or at such other
place or places in the State of New York as may be determined from
time to time by
the board of directors. For meetings other than annual meetings,
the notice shall also state by and at whose direction and for what
purpose or purposes the meeting is called. If the manner of giving
notice of the meeting is not specified by law or the corporate
charter, notice shall be given by mailing, postage prepaid, not
less than ten (10) nor more than fifty (50) days before such
meeting, a copy of the notice of such meeting, stating the purpose
or purposes for which the meeting is called and the time when and
the place
where it is to be held, to each stockholder of record on the record
date established pursuant to Article VII, Section 4 entitled to
vote at the meeting at his address as it appears on the stock book
of the corporation, unless he shall have filed with the Secretary
of the corporation a written request that notices intended for him
be mailed to some other address, in which case it shall be mailed
to the address designated in such request. If, at any meeting,
action
is proposed to be taken which would, if taken, entitle shareholders
fulfilling the requirements of Section 623 of the New York Business
Corporation Law to receive payment for their shares, the notice of
such meeting shall also include a statement to that effect.
Section 4. Business at Stockholders' Meetings: Business transacted
at all meetings of stockholders shall be confined to the objects
stated in the notice of the meeting and matters germane thereto.
In the absence of fraud, the determination of the holders of a
majority of the stock present in person or by proxy and entitled to
vote at the meeting shall be conclusive as to whether any proposed
action or 7
proceeding at such meeting is within the scope of the notice of
such meeting.
Section 5. Procedure: The order of business and all other matters
of procedure at every meeting of stockholders may be determined by
the presiding officer.
Section 6. Quorum: Except as otherwise provided by law or in the
corporate charter, the presence of a majority of the holders of
shares, in person or by proxy, entitled to vote thereat shall
constitute a quorum at any shareholders' meeting.
Section 7. Adjournments: Except as otherwise provided by the
corporate charter, the stockholders entitled to vote who are
present in person or by proxy at any meeting of stockholders,
whether or not a quorum shall be present or represented at the
meeting, shall have power by a majority vote to adjourn the meeting
from time to time without further notice other than announcement at
the meeting, unless the board of directors shall fix a new record
date in respect of such adjourned meeting, in which case the
provisions of Section 3 of this Article shall apply. At any
adjourned meeting at which the requisite
amount of voting stock shall be present in person or by proxy any
business may be transacted which might have been transacted at the
meeting as originally called, and the stockholders entitled to vote
at the meeting as originally called, and no others, unless the
board of directors shall have fixed a new record date in respect
thereof, shall be entitled to vote at such adjourned meeting.
Section 8. Voting: Whenever an action shall require the vote of
stockholders, the tabulations that identify the particular vote of
a stockholder on all proxies, consents, authorizations and ballots
shall be kept confidential, except as disclosure may be required
(i) by applicable law, (ii) in pursuit or defense of legal
proceedings, (iii) to resolve a bona fide dispute as to the
authenticity of one or more proxies, consents, authorizations or
ballots or as to the accuracy of any tabulation of such proxies,
consents, authorizations or ballots, (iv) if an individual
stockholder requests that his or her vote and identity be forwarded
to the corporation, or (v) in the event of a proxy or consent
solicitation in opposition to the solicitation of the Board of
Directors of the corporation; and the 8
receipt and tabulation of such votes will be by an independent
third party not affiliated with the corporation. Comments written
on proxies, consents, authorizations and ballots, will be
transcribed and provided to the secretary of the corporation
without reference to the vote of the stockholder, except where such
stockholder has
requested that the nature of their vote be forwarded to the
corporation.
Stockholders shall have such voting rights as may be granted by law
and the provisions of the corporate charter. All questions
presented to stockholders for decision shall be decided by a vote
of shares. Voting may be viva voce unless a stockholder present in
person or by proxy and entitled to vote at the meeting shall demand
a vote by ballot in which event a vote by ballot shall be taken.
Except where otherwise provided by law, the corporate charter or
these by-laws, elections shall be determined by a plurality vote
and all other questions that shall be submitted to stockholders for
decision shall be decided by a majority of the votes cast.
Section 9. Inspectors of Election: Two inspectors of election who
are not employees or directors of the corporation, shall be
appointed by the directors to serve at each meeting of
stockholders, or of a class of stockholders, such inspectors to
serve at such meeting and any adjournments thereof; and such
inspectors shall have authority to count and report upon the votes
cast at such meeting upon the election of directors and such other
questions as may be voted upon by ballot. In the event that any
such inspector of election shall not have been appointed by the
directors to serve at such meeting, or, having been appointed,
shall be absent from such meeting or adjournment or unable to serve
thereat, such inspector shall be appointed by the presiding officer
at such meeting or adjournment.
The inspectors appointed to act at any meeting of stockholders,
before entering upon the discharge of their duties, shall be sworn
faithfully to execute the duties of inspectors at such meeting with
strict impartiality and according to the best of their ability, and
the oath so taken shall be subscribed by them and shall be filed in
the records of such meeting.
The inspectors shall be responsible for determining the number of
shares outstanding, the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the
validity and effect of any proxies. They shall also receive and
tabulate all votes, ballots or consents and determine the result of
any election,
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hear and determine all challenges and questions arising in
connection with any election and do such acts to conduct the
election according to the applicable provisions of law of the State
of New York.
Section 10. Proxies: Each stockholder entitled to vote at any
meeting of stockholders may be represented and vote at such meeting
by his proxy, authorized and acting in manner as provided by the
applicable laws of the State of New York. No proxy shall be valid
after
the expiration of eleven (11) months from the date of its execution
unless otherwise provided in the proxy in accordance with law.
ARTICLE III
DIRECTORS
Section 1. Number and Qualifications: Except as otherwise required
by the provisions of the corporate charter 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) nor more than twenty-one
(21) persons, the exact number initially to be fifteen (15)
persons, subject to change from time to time to any number not less
than nine (9) nor more than twenty-one (21) persons 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). Directors need not be
stockholders. No person, other than those serving on November 11,
1976, who has reached age 70 shall stand for election as a
director.
Section 2. Election and Tenure of Office: Except as otherwise
provided by law, the corporate charter or these by-laws, the
directors of the corporation shall be elected at the annual meeting
of the stockholders or at any meeting of the stockholders held in
lieu of such annual meeting, which meeting, for the purposes of
these by-laws, shall be deemed the annual meeting. 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, one
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class to hold office initially for a term expiring at the annual
meeting of stockholders to be held in 1989, another class to hold
office initially for a term expiring at the annual meeting of
stockholders to be held in 1990, and another class to hold office
initially for a term expiring at the annual meeting of stockholders
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 the stockholders of the corporation, the successors to
the class of directors whose terms expire at that meeting shall be
elected, to hold office until the annual meeting of stockholders
held in the third year following the year of their election.
Except as
otherwise provided in the corporate charter, the directors shall
hold office until the annual meeting at which their respective
terms expire and until their successors are elected and have
qualified. The election of directors shall be conducted by two
inspectors of election appointed as hereinbefore provided. The
election need not be by ballot and shall be decided by a plurality
vote.
Section 3. Resignation; Removal: Any director of the corporation
may resign at any time by giving his resignation to the chief
executive officer of the corporation, or to the Secretary. Such
resignation shall take effect at the time specified therein; and,
unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. Subject to the rights
of the holders of any class or series of preferred or preference
stock having preference over the holders of 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.
Section 4. Vacancies: Except as otherwise provided by the corporate
charter, 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 stockholders 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 shall hold office for the full unexpired
term
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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 shall have
referred to the proposed election.
Except as otherwise provided by the corporate charter, in the event
of an increase in the number of directors pursuant to Section 1 of
this Article III, 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
stockholders 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 entitled to vote at any meeting of stockholders,
notice of which 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.
Section 5. Compensation: Members of the board of directors shall be
entitled to compensation for service and the board of directors may
assign duties to any member or members of the board and may fix the
amount of compensation therefor, which shall be a charge to be paid
by the corporation. The board of directors may elect or appoint
members of the board as officers, members of committees, or agents
of the corporation, may assign duties to be performed and may fix
the amount of the respective salaries, fees or other compensation
therefor, and the amount so fixed shall be a charge to be paid by
the corporation. In addition to any other compensation provided
pursuant to these by-laws, each director shall be entitled to
receive a fee, in amount as fixed from time to time by resolution
of the board of directors, for attendance at any meeting of the
board, or of
any committee of the board, together with his expenses of
attendance, if any.
Section 6. Meetings of Directors: Regular meetings of the board of
directors shall be held at such times and at such places as may be
determined by the board of directors, or by the Chairman of the
Boardor by thePresident. Specialmeetings of theboard may be called
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from time to time by any three directors, or by the Chairman of the
Board or by the President.
Any action required or permitted to be taken by the board or any
committee thereof may be taken without a meeting if all board or
committee members file one or more written consents to a resolution
authorizing the action with the respective minutes of the board or
committee as the case may be.
Any one or more members of the board or of any of its committees
may participate in a meeting of the board or committee by
conference telephone or similar communications equipment allowing
all participants in the meeting to hear each other at the same
time.
Participation by such means shall constitute presence at a meeting.
Section 7. Notice of Meetings of Board of Directors: Notice of each
meeting of the board of directors, stating the time and place
thereof, shall be given to each member of the board by the
Secretary, or an Assistant Secretary, by mailing the same, postage
prepaid,
addressed to each member of the board at his residence to usual
place of business not less than three (3) days before the meeting,
or by delivering the same to each member of the board personally or
to his
residence or usual place of business, or by sending the same by
telegraph to his residence or usual place of business, not less
than two (2) days before the meeting. Meetings of the board of
directors may also be held at any time and place without notice
provided all the members are present at such meeting without
protest or, at any time before or after the meeting, shall sign a
written waiver of notice. The notice of any meeting of the board
of directors need not specify the purpose or purposes for which the
meeting is called, except as otherwise expressly provided in these
by-laws.
Section 8. Quorum: At all meetings of the board of directors,
except where otherwise provided by law, the corporate charter, or
these by-laws, a quorum shall be required for the transaction of
business and shall consist of not less than one-third of the entire
board,
if the number of members be more than nine (9), but not less than a
majority, if the number of directors be less than nine (9); and the
vote of a majority of the directors present shall decide any
questions that may come before the meeting. A majority of the
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directors present at any meeting, although less than a quorum, may
adjourn the same from time to time, without notice other than
announcement at the meeting, until a quorum is present.
Section 9. Procedure: The order of business and all other matters
of procedure at every meeting of directors may be determined by the
presiding member.
ARTICLE IV
COMMITTEES OF DIRECTORS
Section 1. Designation: The board of directors, by resolution or
resolutions adopted by a majority of the entire board, shall
designate an Executive Committee, an Audit Committee and a Finance
Committee, and may designate one or more other committees, each
committee to consist of three (3) or more directors of the
corporation. In the interim between meetings of the board, the
Executive Committee shall have and may exercise the powers of the
board of directors granted by the corporate charter and these
by-laws and by resolution of the board, and such other committees
shall have only such powers as shall be granted by these by-laws
and by
resolution of the board; provided, however, that no committee shall
have authority as to the following matters:
(a) The submission to shareholders of any action that needs
shareholders' approval by law;
(b) The filling of vacancies in the board of directors or in any
committee;
(c) The fixing of compensation of the directors for serving on the
board or on any committee;
(d) The amendment or repeal of the by-laws, or the adoption of new
by-laws; or
(e) The amendment or repeal of any resolution of the board which,
by its terms, shall not be so amendable or repealable.
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Each committee shall serve at the pleasure of the board of
directors and shall have such name or names as may be determined
from time to time by the by-laws or by resolution or resolutions
adopted by the board of directors. Except as otherwise required by
law, the existence of any such committee may be terminated, or its
powers and
authority modified, at any time by resolution of the board of
directors.
Section 2. Executive Committee: When the board of directors is not
in session, the Executive Committee shall have all of the authority
of the board of directors, except it shall have no authority as to
the matters specified in Section 1 of this Article IV. The
Chairman
of the Board shall be Chairman of the Executive Committee. The
members of the Executive Committee shall serve at the pleasure of
the board of directors.
Section 3. Audit Committee: The Audit Committee shall recommend to
the board of directors the accounting firm to be selected by the
board or to be recommended by it for shareholder approval, as
independent auditor of the corporation and its subsidiaries; act on
behalf of the board in meeting and reviewing with the independent
auditors, the chief internal auditor and the appropriate corporate
officers matters relating to corporate financial reporting and
accounting procedures and policies, adequacy of internal controls
and the scope of the respective audits of the independent auditors
and the internal auditor; review the results of such audits with
the respective auditing agency and reporting thereon to the board;
review and make recommendations to the board concerning the
independent auditor's fees and services; review interim and annual
financial reports and disclosures and submit to the board any
recommendations it may have from time to time with respect to
financial reporting and accounting practices and policies; be
consulted, and its consent obtained, prior to the selection or
termination of the chief internal auditor; oversee matters
involving compliance with Corporate business ethics policies
including the work of the Business Ethics Council; review
management's assessment of financial risks; authorize special
investigations and studies, as appropriate, in fulfillment of its
function as specified herein or by resolution of the board of
directors; and perform any other duties or functions deemed
appropriate by the board of directors. The Committee will conduct
a self-assessment at least every three years of its performance in
relation to its powers and responsibilities. The membership of
such 15
committee shall consist only of directors of the corporation who
are not, and have not been, officers of the company.
Section 4. Finance Committee: The Finance Committee shall exercise
such powers of the board of directors as shall be provided in one
or more resolutions of the board of directors with respect to the
issuance by the corporation of securities and evidences of
indebtedness and the participation by the corporation in other
financing transactions and with respect to the authorization of the
making, modification, alteration, termination or abrogation of
notes, bills, mortgages, sales, deeds, financing leases, liens and
contracts of the corporation and shall further be empowered to take
any action in connection with the determination of the terms of any
securities, evidences of indebtedness or other financing
transactions of the corporation the issuance of which by the
corporation or the participation in which by the corporation shall
have theretofore been approved by the board of directors.
Section 5. Records and Procedure: Said committees shall keep
regular minutes of their proceedings and report the same to the
board when required. Unless otherwise determined by the board of
directors each committee may appoint a chairman and a secretary and
such other officers of the committee as it may deem advisable, may
determine the time and place of holding each meeting of the
committee, the notice of meetings to be given to members, and all
other procedural questions which may arise in connection with the
work of the committee.
ARTICLE V
OFFICERS
Section 1. Officers: The officers of the corporation shall consist
of a Chairman of the Board, a President, one or more
Vice-Presidents, a Secretary, a Controller, a Treasurer, and such
Assistant Secretaries, Assistant Controllers and Assistant
Treasurers and other officers as
shall be elected or appointed by the board of directors. The board
of directors may elect or appoint a General Counsel upon such terms
16
and with such powers and duties as it may prescribe and may also
designate the General Counsel an officer of the corporation.
Section 2. Election: The officers of the corporation shall be
elected or appointed by the board of directors at the meeting of
the board held after each annual meeting of the stockholders. The
Chairman of the Board and the President shall be elected or
appointed by the board of directors from among their number. Any
number of
Vice-Presidents, the Secretary, the Controller, the Treasurer and
other officers established pursuant to resolution of the board of
directors shall also be elected or appointed by the board of
directors.
Section 3. Term of Office: The officers of the corporation shall
hold office until the meeting of the board of directors held after
the next annual meeting of the stockholders and until their
successors are elected and have qualified, unless a shorter term is
fixed or unless removed, subject to the provisions of law, by the
board of directors. The Chairman of the Board, the President, any
Vice President, the Secretary, the Controller or the Treasurer may
be removed at any time, with or without cause, by the board of
directors provided that notice of the meeting at which such action
shall have been taken shall set forth such action as one of the
purposes of such meeting. Any other officer of the corporation may
be removed at any time, with or without cause, by the board of
directors. If the office of any officer becomes vacant for any
reason, the vacancy may be filled by the board of directors at any
time to serve the remaining current term of that office.
Section 4. Chairman of the Board: There shall be a chairman of the
Board of Directors, with the official title "Chairman of the
Board", who shall be the chief executive officer of the
corporation. The Chairman of the Board shall preside at meetings
of the stockholders,
the board of directors and the Executive Committee. He shall
recommend to the board policies to be followed by the corporation,
and, subject to the board, shall have general charge of the
policies and business of the corporation and general supervision of
the details thereof, and shall supervise the operation, maintenance
and preservation of the properties of the corporation. He shall
keep the board of directors informed respecting thebusiness of the
17
corporation. He shall have authority to sign on behalf of the
corporation all contracts and other documents or instruments to be
signed or executed by the corporation, and, in all cases where the
duties and powers of subordinate officers and agents of the
corporation are not specifically prescribed by the by-laws or by
resolutions of the board of directors, the Chairman of the Board
may prescribe such duties and powers. He shall perform such other
duties as may from time to time be assigned to him by the board of
directors.
Section 5. The President: The President shall have the direction of
and responsibility for the operations of the corporation and such
other powers and duties as the board of directors or the Chairman
of the Board shall designate from time to time and, in the absence
or inability to act of the Chairman of the Board, shall have the
powers and duties of the Chairman of the Board. The President,
unless some other person is thereunto specifically authorized by
vote of the board of directors, shall have authority to sign all
contracts and other documents and instruments of the corporation.
Section 6. The Vice-Presidents: The Vice-Presidents may be
designated by such title or titles and in such order of seniority
as the board of directors may determine. The Vice-Presidents shall
perform such of the duties and exercise such of the powers of the
President on behalf of the corporation as may be assigned to them
respectively from time to time by the board of directors or by the
Chairman of the Board or the President, and, subject to the control
of the board, shall have authority to sign on behalf of the
corporation all contracts and other documents or instruments
necessary for the conduct of the business of the corporation. The
Vice-Presidents shall perform such other duties as may from time to
time be assigned
to them respectively by the board of directors or the Chairman of
the Board or the President.
Section 7. The Secretary and Assistant Secretaries: The Secretary
shall cause notices of all meetings of stockholders and directors
to be given as required by law, the corporate charter, and these
by-laws. He shall attend all meetings of stockholders and of the
board of directors and keep the minutes thereof. He shall affix
the corporate seal to and sign such instruments as require the seal
and his signature and shall perform such other duties as usually
pertain 18
to his office or as are required of him by the board of directors
or the Chairman of the Board or the President.
Any Assistant Secretary may, in the absence or disability of the
Secretary, or at his request, perform the duties and exercise the
powers of the Secretary, and shall perform such other duties as the
board of directors, the Chairman of the Board, the President or the
Secretary shall prescribe.
The Secretary or any Assistant Secretary may certify under the
corporate seal as to the corporate charter or these by-laws or any
provision thereof, the acts of the board of directors or any
committee thereof, the tenure, signatures, identity and acts of
officers of the corporation or other corporate facts, and any such
certificate may be relied upon by any person or corporation to whom
the same shall be given until receipt of written notice to the
contrary.
In the absence of the Secretary and of an Assistant Secretary, the
stockholders or the board of directors may appoint a secretary pro
tem to record the proceedings of their respective meetings and to
perform such other acts pertaining to said office as they may
direct.
Section 8. The Controller and Assistant Controllers: The Controller
shall be the chief accounting officer of the corporation. He shall
have general supervision of the accounting and financial reporting
policies of the corporation, and shall recommend policies and
procedures and shall render current and periodic reports of
financial status to the Chairman of the Board, the President and
the board of directors. He shall perform such other duties as
usually pertain to his office or as are required of him by the
board of directors or the
Chairman of the Board or the President.
Any Assistant Controller may, in the absence or disability of the
Controller, or at his request, perform the duties and exercise the
powers of the Controller and shall perform such other duties as the
board of directors, the Chairman of the Board, the President or the
Controller shall prescribe.
Section 9. The Treasurer and Assistant Treasurers: The Treasurer is
authorized and empowered to receive and collect all moneys due the
19
corporation and to receipt for the same. He shall be empowered to
execute on behalf of the corporation all instruments, agreements
and certificates necessary or appropriate to effect the issuance by
the
corporation of securities or evidences of indebtedness or to permit
the corporation to enter into and perform any other financing
transactions to the extent the foregoing are within the ordinary
course of business of the corporation or have been authorized by
the board of directors or a committee thereof. He shall cause to
be entered in books of the corporation to be kept for that purpose
full and accurate accounts of all moneys received by and paid on
account
of the corporation. He shall make and sign such reports,
statements, and instruments as may be required of him by the board
of directors or by laws of the United States or the State of New
York, or by commission, bureau, department or agency created under
any such laws, and shall perform such other duties as usually
pertain to his office or as are required of him by the board of
directors or the Chairman of the Board or the President.
Any Assistant Treasurer may, in the absence or disability of the
Treasurer, or at his request, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as the
board of directors, the Chairman of the Board, or the President,
or the Treasurer shall prescribe.
Section 10. Additional Officers: In addition to the officers
provided for by these by-laws, the board of directors may, from
time to time, designate and appoint such other officers as may be
necessary or convenient for the transaction of the business and
affairs of the
corporation. Such other officers shall have such powers and duties
as may be assigned to them by resolution of the board of directors.
Section 11. Officers Holding Two or More Offices: Any two or more
of the above-mentioned offices may be held by the same person,
except
that the President shall not also be the Secretary, but no officer
shall execute or verify any instrument in more than one capacity if
such instrument be required by law or otherwise to be executed or
verified by any two or more officers.
Section 12. Duties of Officers May be Delegated: In case of the
absence of any officer of the corporation, or for any other reason
that the board of directors may deem sufficient, the board of
20
directors may delegate, for the time and to the extent specified,
the powers or duties of any officer to any other officer, or to any
director.
Section 13. Compensation: The compensation of all officers with an
assigned salary level above the scale of Salary Level 20 as
prescribed in the Salary Administration Program, as adopted by the
board of directors, shall be fixed by the board of directors. The
compensation of all other officers and employees shall be fixed by
the Chairman of the Board or by the President in accordance with
the Salary Administration Program.
Section 14. Bonds: The board of directors may require any officer,
agent or employee of the corporation to give a bond to the
corporation, conditional upon the faithful performance of his
duties, with one or more sureties and in such amount as may be
satisfactory to the board of directors. The premium payable to any
surety company for such bond shall be paid by the corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS; INSURANCE
Section 1. Indemnification: The corporation shall fully indemnify,
to the extent not expressly prohibited by law, each person involved
in, or made or threatened to be made a party to, any action, claim
or proceeding, whether civil or criminal, including any
investigative, administrative, legislative, or other proceeding,
and including an action by or in the right of the corporation or
any other corporation, or any partnership, joint venture, trust,
employee benefit plan, or other enterprise, and including appeals
therein
(any such action or proceeding being hereinafter referred to as a
"Matter"), by reason of the fact that such person, such person's
testator or intestate (i) is or was a director or officer of the
corporation, or (ii) is or was serving, at the request of the
corporation, as a director, officer, or in any other capacity, any
other corporation, or any partnership, joint venture, trust,
employee benefit plan, or other enterprise, against any and all
judgments,
fines, penalties, amounts paid in settlement, and expenses,
including attorneys' fees, actually and reasonably incurred as a
result of or 21
in connection with any Matter, except as provided in the next
paragraph.
No indemnification shall be made to or on behalf of any such person
if a judgment or other final adjudication adverse to such person
establishes that such person's acts were committed in bad faith or
were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated, or that such person
personally gained in fact a financial profit or other advantage to
which such person was not legally entitled. In addition, no
indemnification
shall be made with respect to any Matter initiated by any such
person against the corporation, or a director or officer of the
corporation, other than to enforce the terms of this article,
unless such Matter was authorized by the board of directors.
Further, no indemnification shall be made with respect to any
settlement or
compromise of any Matter unless and until the corporation has
consented to such settlement or compromise.
In making any determination regarding any person's entitlement to
indemnification hereunder, it shall be presumed that such person is
entitled to indemnification, and the corporation shall have the
burden of proving the contrary.
Written notice of any Matter for which indemnity may be sought by
any person shall be given to the corporation as soon as practicable
and the corporation shall be permitted to participate therein.
Such person shall cooperate in good faith with any request that
common counsel be utilized by the parties to any Matter who are
similarly situated, unless to do so would be inappropriate due to
actual or potential differing interests between or among such
parties.
Section 2. Advancement of Expenses: Except in the case of a Matter
against a director, officer, or other person specifically approved
by the board of directors, the corporation shall, subject to
Section 1
above, pay expenses actually and reasonably incurred by or on
behalf of such a person in connection with any Matter in advance of
the final disposition of such Matter. Such payments shall be made
promptly upon receipt by the corporation, from time to time, of a
written demand of such person for such advancement, together with
an undertaking by or on behalf of such person to repay any expenses
so advanced to the extent that the person receiving the advancement
is 22
ultimately found not to be entitled to indemnification for part or
all of such expenses.
Section 3. Rights Not Exclusive: The rights to indemnification and
advancement of expenses granted by or pursuant to this article (i)
shall not limit or exclude, but shall be in addition to, any other
rights which may be granted by or pursuant to any statute,
corporate
charter, by-law, resolution, or agreement, (ii) shall be deemed to
constitute contractual obligations of the corporation to any
director, officer, or other person who serves in a capacity
referred to herein at any time while this article is in effect,
(iii) are
intended to be retroactive and shall be available with respect to
events occurring prior to the adoption of this article, and (iv)
shall continue to exist after the repeal or modification hereof
with respect to events occurring prior thereto. It is the intent
of this article to require the corporation to indemnify the persons
referred to herein for the aforementioned judgments, fines,
penalties, amounts paid in settlement, and expenses, including
attorneys' fees, in each and every circumstance in which such
indemnification could lawfully be permitted by express provisions
of by-laws, and the indemnification required by this article shall
not be limited by the absence of an express recital of such
circumstances.
Section 4. Authorization of Contracts: The corporation may, with
the approval of the board of directors, enter into an agreement
with any person who is, or is about to become, a director or
officer of the corporation, or who is serving, or is about to
serve, at the request
of the corporation, as a director, officer, or in any other
capacity, any other corporation, or any partnership, joint venture,
trust, employee benefit plan, or other enterprise, which agreement
may provide for indemnification of such person and advancement of
expenses to such person upon terms, and to the extent, not
prohibited by law. The failure to enter into any such agreement
shall not affect or limit the rights of any such person under this
article.
Section 5. Insurance: The corporation may purchase and maintain
insurance to indemnify the corporation and the directors and
officers within the limits permitted by law.
23
Section 6. Severability: If any provision of this article is
determined at any time to be unenforceable in any respect, the
other provisions shall not in any way be affected or impaired
thereby.
ARTICLE VII
STOCK
Section 1. Transfer Agent and Registrar: The board of directors may
appoint one or more individuals, banks, firms of bankers, or trust
companies the agent or agents of the corporation for the transfer
of shares of its stock, and may also appoint one or more
individuals, bank, firms of bankers, or trust companies registrar
or registrars for the registering of shares of its stock.
Section 2. Certificate of Stock: The certificates of stock of the
corporation shall be numbered and shall be recorded in the books of
the corporation as they are issued. They shall contain the
holder's name and number of shares and shall be signed by the
Chairman of the Board, the President or a Vice-President and the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and shall be sealed with the corporate seal,
which may be a facsimile. Where any such certificate is signed by
a registrar, the signatures of any such Chairman of the Board,
President, Vice-President, Secretary, Assistant Secretary,
Treasurer or Assistant Treasurer upon such certificate may be
facsimiles. In case any such officer who has signed or whose
facsimile signature has been placed upon such certificate shall
have ceased to be such before such certificate is issued, it may be
issued by the corporation with the same effect as if such officer
had not ceased to be such at the date of its issue. No certificate
of stock shall be valid until countersigned by a transfer agent if
the corporation have a transfer agent for the class or series of
stock represented by such certificate whose signature may be a
facsimile and until registered by a registrar if the corporation
have a registrar for such class or series.
24
Section 3. Transfers of Shares: Subject to applicable law, shares
of stock shall be transferable on the books of the corporation by
the holder thereof, in person or by duly authorized attorney, upon
the surrender to the corporation or any transfer agent of the
corporation of the certificate representing the shares to be
transferred, duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer. The corporation
shall be entitled to treat the holder of record of any share or
shares of stock as the owner
thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on
the part of any other person whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of
the State of New York. The board of directors, to the extent
permitted by law, shall
have power and authority to make all such rules and regulations as
it may deem expedient concerning the issue, transfer, and
registration of certificates of stock.
Section 4. Fixing of Record Date or Closing Transfer Books: The
board of directors may fix a day and hour, not more than fifty (50)
days prior to the day on which any meeting of stockholders is to be
held, as the time as of which stockholders entitled to notice of or
to vote at such meeting and at all adjournments thereof shall be
determined; and in the event such record date is fixed by the board
of directors no one other than the holders of record on such date
of stock entitled to notice of or to vote at such meeting shall be
entitled to
notice of or to vote at such meeting or, unless a new record date
be fixed as provided in Article II, Section 7 of these by-laws, any
adjournment thereof. The board of directors may at its option, in
lieu of fixing a record date as aforesaid, prescribe a period, not
exceeding fifty (50) days prior to any meeting of stockholders,
during which no transfer of shares on the books of the corporation
may be made.
The board of directors may fix a day and hour, not exceeding fifty
(50) days preceding the date fixed for the payment of a dividend or
the making of any distribution, or for the delivery of evidences or
rights or evidences of interests arising out of any change,
conversion or exchange of stock, as a record time for the
determination of the stockholders, or stockholders of any class or
series, entitled to receive any such dividend, distribution,
rights, or interests, and in such case only stockholders of record
at the time so fixed shall be entitled to receive such dividend,
distribution, rights, or interests, or the board of directors may
at
25
its option prescribe a period, not exceeding fifty (50) days prior
to the date for such payment, distribution or delivery, during
which no transfer of stock on the books of the corporation may be
made.
Section 5. Lost Stock Certificates: The holder of any certificate
representing shares of stock of the corporation shall immediately
notify the corporation of any mutilation, loss, or destruction
thereof, and the board of directors or an officer or officers duly
authorized thereunto by the board of directors may in its or his
discretion authorize one or more new certificates for the same
number of shares in the aggregate to be issued to such holder upon
the surrender of the mutilated certificate, or, in case of loss or
destruction of the certificate, upon satisfactory proof of such
loss or destruction and the deposit of indemnity by way of bond or
otherwise in such form and amount and with such surety or sureties
or
security as the board of directors or such officer or officers may
require to protect the corporation against loss or liability by
reason of the issuance of such new certificates; but the board of
directors may in its discretion refuse to issue new certificates
save upon the order of the court having jurisdiction in such
matters.
Section 6. Scrip: The board of directors may from time to time
authorize the issuance by the corporation of scrip certificates
representing interests in fractions of a full share of any class or
series of stock of the corporation, and, subject to the provisions
of the corporate charter and applicable provisions of law, shall
have power to prescribe the rights, and the conditions and
limitations thereof, to which the holders of such scrip
certificates shall be
entitled in respect of such scrip certificates and of the interests
in shares of stock of the corporation represented thereby, which
rights and the conditions and limitations thereon shall be set
forth therein to the extent required by law. Such scrip
certificates may be issued in registered or bearer form, as the
board of directors may determine.
26
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Finances: The funds of the corporation shall be
deposited in its name with such bank or banks, firm or firms of
bankers, trust company or trust companies as the board of directors
may from time to time designate. All checks, notes, drafts and
other negotiable
instruments of the corporation shall be signed by such officer or
officers, agent or agents, employee or employees or such other
person or persons as may be designated by the board of directors
from time to time by resolution, or by the Chairman of the Board or
the
President or the Treasurer in the exercise of authority conferred
by resolution of the board of directors. No officers, agents,
employees of the corporation, or other person, alone or with
others, shall have power to make any checks, notes, drafts or other
negotiable instruments in the name of the corporation or to bind
the corporation thereby, except as in this article provided.
Section 2. Fiscal Year: The fiscal year of the corporation shall be
the calendar year unless otherwise provided by the board of
directors.
ARTICLE IX
CORPORATE SEAL
Section 1. Form of Seal: The seal of the corporation shall bear the
name of the corporation, the year of its incorporation, and such
appropriate design as the board of directors may approve. The seal
on stock certificates or on any corporate obligation for the
payment of money may be facsimile.
27
ARTICLE X
AMENDMENTS
Section 1. Procedure: These by-laws may be added to, amended,
altered, or repealed at any meeting of stockholders, notice of
which shall have referred to the proposed action, by the vote of
the holders of record of a majority of the outstanding shares of
the corporation entitled to vote, or, to the extent permitted by
law, at any meeting of the board of directors, notice of which
shall have referred to the proposed action, by the affirmative vote
of a majority of the board of directors.
Section 2. Amendment of By-Law Regulating Election of Directors: If
any by-law regulating an impending election of directors is adopted
or amended or repealed by the board of directors, there shall be
set forth in the notice of the next meeting of stockholders for the
election of directors the by-law so adopted or amended or repealed,
together with a concise statement of the changes made.
Exhibit 4(b)
March 23, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Niagara Mohawk Power Corporation
1994 Annual Report on Form 10-K
Gentlemen:
Pursuant to the exemption afforded by Item 601(b)(4)(iii)(A) of
Regulation S-K, Niagara Mohawk Power Corporation (Company) is not
filing as exhibits to its Annual Report on Form 10-K for 1994
instruments with respect to certain long-term debt of the Company
and/or its subsidiaries. These instruments include (i) agreements
with respect to pollution control revenue bonds and (ii) agreements
with respect to senior notes. Each item of long-term debt referenced
above does not exceed 10% of the total assets of the Company and its
subsidiaries on a consolidated basis. Reference is made to Note 5
to Consolidated Financial Statements (Item 8 of the Company's Annual
Report on Form 10-K for 1994).
The Company agrees to furnish a copy of the above instruments to
the Securities and Exchange Commission upon request.
Sincerely,
/s/ Steven W. Tasker
Steven W. Tasker
EXHIBIT 4(86)
NIAGARA MOHAWK POWER CORPORATION
to
MARINE MIDLAND BANK, as Trustee
____________________
SUPPLEMENTAL INDENTURE
Dated as of July 1, 1994
Providing for the consolidation, amendment and restatement
of the Supplemental Indentures creating the Forty-eighth and
Forty-ninth Series of Bonds and of the outstanding Forty-eighth
and Forty-ninth Series of Bonds, in an aggregate principal amount
of $115,705,000, to be redesignated First Mortgage Bonds,
7.20% Seventy-ninth Series due July 1, 2029
___________________
TABLE OF CONTENTS*
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . 4
PART I - Consolidation, Amendment and Restatement of the
Supplemental Indentures creating the Forty-eighth and
the Forty-ninth Series of Bonds 4 . . . . . . . 4
PART II - Consolidation, Amendment and Restatement of the
outstanding Forty-eighth and Forty-ninth Series of
First Mortgage Bonds, Redesignated 7.20% Series due
July 1, 2029 . . . . . . . . . . . . . . . . 5
Form of Face of Definitive Bond of
the Seventy-ninth Series . . . . . . . . . . . . . 11
Form of Trustee's Certificate . . . . . . . . . . 13
Form of Reverse of Definitive Bond
of the Seventy-ninth Series . . . . . . . . . . . 14
PART III - Maintenance Fund Provisions and Restrictions as to
Dividends . . . . . . . . . . . . . . . . . . . 18
PART IV - Provisions Relating to Institutional
Holders . . . . . . . . . . . . . . . . . . . . 18
PART V - Future Amendments of Indenture . . . . . . . . . 19
PART VI - The Trustee . . . . . . . . . . . . . . . . . . . 26
PART VII - Miscellaneous Provisions . . . . . . . . . . . . 26
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 27
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . 27
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . 28
______________________
* This Table of Contents does not constitute part of the
supplemental indenture or have any bearing upon the
interpretation of any of its terms and provisions.
SUPPLEMENTAL INDENTURE dated as of July 1, 1994, made by
and between NIAGARA MOHAWK POWER CORPORATION, a corporation duly
organized and existing under the laws of the State of New York,
having its principal place of business (residence) at No. 300
Erie Boulevard West, Syracuse, New York (hereinafter sometimes
referred to as the "Company"), party of the first part, and
MARINE MIDLAND BANK (successor to Marine Midland Bank, N.A., a
national banking association and, in turn, successor to Marine
Midland Bank, a corporation duly organized and existing under the
laws of the State of New York, formerly named The Marine Midland
Trust Company of New York, Marine Midland Grace Trust Company of
New York and Marine Midland Bank -- New York), a banking
corporation and trust company, duly organized and existing under
the laws of the State of New York, having its principal corporate
trust office at 140 Broadway, New York, New York (hereinafter
sometimes referred to as the "Trustee"), as Trustee under the
Mortgage Trust Indenture hereinafter mentioned, party of the
second part.
WHEREAS, the Company (formerly Central New York Power
Corporation) has heretofore executed and delivered to the Trustee
its Mortgage Trust Indenture dated as of October 1, 1937
(hereinafter referred to as the "Original Indenture") and
indentures supplemental thereto dated as of December 1, 1938, as
of April 15, 1939, as of July 1, 1940, as of January 1, 1942, as
of October 1, 1944, as of June 1, 1945, as of August 17, 1948, as
of December 31, 1949, as of January 1, 1950, as of October 1,
1950, as of October 19, 1950, as of December 1, 1951, as of
February 1, 1953, as of February 20, 1953, as of October 1, 1953,
as of August 1, 1954, as of April 25, 1956, as of May 1, 1956, as
of September 1, 1957, as of June 1, 1958, as of March 15, 1960,
as of April 1, 1960, as of November 1, 1961, as of December 1,
1964, as of October 1, 1966, as of July 15, 1967, as of August 1,
1967, as of August 1, 1968, as of December 1, 1969, as of
February 1, 1971, as of February 1, 1972, as of August 1, 1972,
as of December 1, 1973, as of October 1, 1974, as of March 1,
1975, as of August 1, 1975, as of March 15, 1977, as of August 1,
1977, as of December 1, 1977, as of March 1, 1978, as of December
1, 1978, as of September 1, 1979, as of October 1, 1979, as of
June 15, 1980, as of September 1, 1980, as of March 1, 1981, as
of August 1, 1981, as of March 1, 1982, as of April 1, 1982, as
of June 1, 1982, as of August 1, 1982, as of November 1, 1982, as
of March 1, 1983, as of May 1, 1983, as of June 1, 1983, as of
March 1, 1984, as of May 1, 1984, as of July 1, 1984, as of
October 1, 1984, as of January 1, 1985, as of February 1, 1985,
as of February 15, 1985, as of November 1, 1985, as of June 1,
1986, as of August 1, 1986, as of October 1, 1986, as of November
1, 1986, as of July 1, 1987, as of May 1, 1988, as of February 1,
1989, as of April 1, 1989, as of October 1, 1989, as of June 1,
1990, as of November 1, 1990, as of March 1, 1991, as of October
1, 1991, as of April 1, 1992, as of June 1, 1992, as of July 1,
1992, as of August 1, 1992, as of April 1, 1993, as of July 1,
1993, as of September 1, 1993 and as of March 1, 1994 (said
Original Indenture, together with all instruments stated to be
supplemental thereto to which the Trustee has heretofore been or
shall hereafter be a party, including said enumerated
Supplemental Indentures and this Supplemental Indenture, being
herein referred to as the "Indenture"); and
WHEREAS, the Indenture provides in Section 1 of Article
Twelfth thereof that without any action or consent by, or notice
to, the holders of any of the Bonds, the Company and the Trustee,
from time to time and at any time, may enter into such indentures
supplemental to the Original Indenture as shall be by them deemed
necessary or desirable for the purpose of establishing the form,
terms, provisions and conditions of a particular series of Bonds,
and of providing the terms and conditions of redemption of Bonds
of such series, or for a retirement fund or other fund for such
series, or for any other purpose not inconsistent with the terms
of the Indenture and which shall not impair the security of the
same; and
WHEREAS, the Indenture provides in Section 2 of Article
Twelfth thereof that in addition to the power and authority given
under Section 1 of Article Twelfth, any of the provisions of the
Indenture may be amended, repealed or modified in the manner
provided in such Section 2, PROVIDED, that no such amendment,
repeal or modification shall alter or impair the obligation of
the Company, which is absolute and unconditional to pay the
principal and interest of any Bond outstanding under the
Indenture at the time and place and at the rate prescribed
therein without the consent of the holder of such Bond; and
WHEREAS, the Indenture provides in paragraph E of Section 2
of Article Twelfth thereof that provided the holders of at least
66 2/3 per cent in aggregate principal amount of the outstanding
Bonds affected by the alteration shall have consented to and
approved the execution of any such supplemental indenture, no
holder of any Bond shall thereafter have any right or interest to
object to the execution of such supplemental indenture or to
object to any of the terms or provisions therein contained, or in
any manner to question the propriety of the execution thereof, or
to enjoin or restrain the Trustee or the Company from executing
the same or from taking any action pursuant to the provisions
thereof; and
WHEREAS, the New York State Energy Research and Development
Authority ("Authority") issued (i) 11 1/4% Pollution Control
Revenue Bonds (Niagara Mohawk Power Corporation Project), 1984
Series A pursuant to an Indenture of Trust dated as of July 1,
1984 (a "Prior NYSERDA Indenture") between the Authority and
Bankers Trust Company, as trustee (in such capacity, a "Prior
NYSERDA Trustee"), and (ii) 11 3/8% Pollution Control Revenue
Bonds (Niagara Mohawk Power Corporation Project), Series 1984 I
pursuant to an Indenture of Trust dated as of October 1, 1984 (a
"Prior NYSERDA Indenture") between the Authority and Bankers
Trust Company, as trustee (in such capacity, a "Prior NYSERDA
Trustee"), (the bonds issued under the Prior NYSERDA Indentures
being herein referred to collectively as the "Prior NYSERDA
Bonds") and advanced to the Company the proceeds of the Prior
NYSERDA Bonds for use by the Company in connection with a
pollution control project of the Company; and
WHEREAS, pursuant to a Participation Agreement between the
Authority and the Company dated as of July 1, 1984 (a "Prior
Participation Agreement") and a Participation Agreement between
the Authority and the Company dated as of October 1, 1984 (a
"Prior Participation Agreement"), the Company issued first
mortgage bonds pursuant to Supplemental Indentures to the
Original Indenture (each a "Prior Supplemental Indenture")
creating the Forty-eighth and Forty-ninth Series of Bonds (the
"Prior First Mortgage Bonds") to evidence the obligation of the
Company to repay to the Authority the amounts advanced to the
Company as aforesaid; and
WHEREAS, the Authority has agreed pursuant to a
Participation Agreement between the Authority and the Company
dated as of October 1, 1992 (the "Participation Agreement") to
issue new bonds of the Authority in an aggregate principal amount
not to exceed $115,705,000 and to be designated "Pollution
Control Refunding Revenue Bonds (Niagara Mohawk Power Corporation
Project), 1994 Series A Bonds" (the "NYSERDA Bonds"), which will
be issued pursuant to an Indenture dated as of October 1, 1992
(the "NYSERDA Bond Indenture") between the Authority and The Bank
of New York (such trustee and any successor thereto being
hereinafter referred to as the "NYSERDA Bond Trustee"), to refund
the Prior NYSERDA Bonds; and
WHEREAS, as set forth in the Participation Agreement, the
Authority and the Company have agreed that concurrently at such
time as the NYSERDA Bonds are issued and the Prior NYSERDA Bonds
issued under a Prior Indenture are deemed paid within the meaning
of such Prior NYSERDA Indenture, the Company will take actions
necessary to ensure that (i) all Prior First Mortgage Bonds
relating to such Prior NYSERDA Bonds shall be delivered by the
Prior NYSERDA Trustee to the NYSERDA Bond Trustee, (ii) all Prior
First Mortgage Bonds relating to such Prior NYSERDA Bonds shall
be consolidated, amended and restated pursuant to the terms of
this Supplemental Indenture, (iii) each Prior Supplemental
Indenture relating to such Prior First Mortgage Bonds shall be
consolidated, amended and restated under and pursuant to the
terms of this Supplemental Indenture, (iv) the NYSERDA Bond
Trustee shall deliver the Prior First Mortgage Bonds to the
Trustee and (v) the Trustee shall deliver new certificates
representing the First Mortgage Bonds of the Seventy-ninth Series
to the NYSERDA Bond Trustee pursuant to the terms of this
Supplemental Indenture; and
WHEREAS, the Company desires to enter into this indenture
supplemental to the Original Indenture with the Trustee for the
purpose of consolidating, amending and restating the form, terms,
provisions and conditions of the forty-eighth and forty-ninth
series of Bonds under the Indenture and for the purpose of
consolidating, amending and restating the Supplemental Indentures
creating the Forty-eighth and the Forty-ninth Series of Bonds in
accordance with this Supplemental Indenture, all as determined by
resolution or resolutions of the Board of Directors of the
Company and as agreed to by the Authority; and
WHEREAS, the Company in the exercise of the authority and
power reserved to it under and by virtue of the provisions of the
Indenture and pursuant to appropriate resolutions of its Board of
Directors has duly resolved and determined to make, execute and
deliver to the Trustee a supplemental indenture in the form
hereof and for the purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make
this Supplemental Indenture a valid, binding and legal instrument
in accordance with its terms have been performed and fulfilled
and the execution and delivery hereof have been in all respects
duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE
W I T N E S S E T H:
That for and in consideration of the premises and of the
purchase or acceptance of the Bonds by those who shall hold the
same from time to time and of the sum of One Dollar to the
Company duly paid by the Trustee at or before the execution and
delivery of this Supplemental Indenture and for other good and
valuable consideration, the receipt whereof is hereby
acknowledged, the Company does hereby covenant and agree with the
Trustee for the benefit of the holders of the Bonds, or any of
them, issued or to be issued under the Indenture, as follows:
PART I.
CONSOLIDATION, AMENDMENT AND RESTATEMENT OF THE
SUPPLEMENTAL INDENTURES CREATING THE FORTY-EIGHTH AND FORTY-NINTH
SERIES OF BONDS
SECTION 1. At such time as all Prior First Mortgage Bonds
issued under a Prior Supplemental Indenture (either the
Supplemental Indenture creating the Forty-eighth or the Forty-
ninth Series of Bonds or both such Indentures, as the case may
be) not heretofore cancelled by the Trustee or delivered to the
Trustee cancelled or for cancellation have been delivered to the
Trustee by the registered holder thereof, such Prior Supplemental
Indenture (either the Supplemental Indenture creating the Forty-
eighth or the Forty-ninth Series of Bonds or both such
Indentures, as the case may be) shall be consolidated, amended
and restated into and as this Supplemental Indenture.
PART II.
CONSOLIDATION, AMENDMENT AND RESTATEMENT
OF THE FORTY-EIGHTH AND FORTY-NINTH SERIES
OF FIRST MORTGAGE BONDS
SECTION 1. At such time as all Prior First Mortgage Bonds
issued under a Prior Supplemental Indenture (either the
Supplemental Indenture creating the Forty-eighth or the Forty-
ninth Series of Bonds or both such Indentures, as the case may
be) not heretofore cancelled by the Trustee or delivered to the
Trustee cancelled or for cancellation have been delivered to the
Trustee by the registered holder thereof, such Prior First
Mortgage Bonds (issued under either the Supplemental Indenture
creating the Forty-eighth or the Forty-ninth Series of Bonds or
both such Indentures, as the case may be) shall be consolidated,
amended and restated as the "First Mortgage Bonds, 7.20% Series
due July 1, 2029" (hereinafter sometimes referred to as the
"Bonds of the Seventy-ninth Series").
The permitted principal amount of the Bonds of the Seventy-
ninth Series which may be consolidated, amended and restated by
the Company and executed by the Company in connection therewith
and authenticated by the Trustee is limited so that at no time
shall there be authenticated, delivered or outstanding under the
Indenture, Bonds of the Seventy-ninth Series for a principal
amount exceeding $115,705,000, except that Bonds of the Seventy-
ninth Series may always be issued as provided in Section 2 of
Article Fourth of the Indenture.
Upon the execution of this Supplemental Indenture, the
Trustee, without awaiting the filing or recording of this
Supplemental Indenture but upon receipt of evidence of due
compliance by the Company with the applicable provisions of the
Indenture, shall authenticate, pursuant to Section 10 of Article
Second, the Bonds of the Seventy-ninth Series and deliver the
same to the NYSERDA Bond Trustee in exchange for certificates
representing the same principal amount of the Prior First
Mortgage Bonds delivered to the Trustee by the NYSERDA Bond
Trustee, all such actions to occur simultaneously with delivery
of the NYSERDA Bonds.
SECTION 2. The Bonds of the Seventy-ninth Series shall
mature according to their terms on July 1, 2029 and, in the case
of the initial authentication of the Bonds of the Seventy-ninth
Series, shall be dated July 1, 1994 and shall bear interest from
July 1, 1994 at the rate per annum specified in the designation
of such series, payable semi-annually on January 1 and July 1 in
each year (computed on the basis of a 360-day year of twelve 30-
day months). Definitive Bonds of said series shall be registered
Bonds without coupons and shall be issued in denominations of
$1,000 and multiples thereof.
Subsequent to the initial authentication of the Bonds of
the Seventy-ninth Series, each Bond of the Seventy-ninth Series
shall be dated as of the date of its authentication, and shall
bear interest from the January 1 or July 1, as the case may be,
next preceding the date of such Bond to which interest has been
paid or provided for (unless the date of such Bond is a January 1
or a July 1 to which interest has been paid or provided for, in
which case such Bond shall bear interest from its date, or unless
the date of such Bond is prior to the payment of any interest on
the Bonds of the Seventy-ninth Series, in which case such Bond
shall bear interest from July 1, 1994). However, so long as
there is no existing default in the payment of interest on the
Bonds of the Seventy-ninth Series, any such Bond authenticated by
the Trustee after the close of business on the record date (as
hereinafter in this Section 2 defined) for any interest payment
date and prior to such interest payment date shall be dated the
date of its authentication, but shall bear interest from such
interest payment date; PROVIDED, HOWEVER, that if and to the
extent the Company shall default in the payment of interest on
such interest payment date, then such Bond shall bear interest
from the January 1 or July 1, as the case may be, next preceding
the date of such Bond to which interest has previously been paid
or made available for payment on the outstanding Bonds of the
Seventy-ninth Series or, if no interest has been paid on such
Bonds, from July 1, 1994.
Notwithstanding any other provision contained herein, the
obligation of the Company to make payments of the principal of
and premium, if any, and interest on the Bonds of the Seventy-
ninth Series shall be fully or partially satisfied and
discharged, and the amount of any such payment shall be reduced,
to the extent that the Trustee shall have received written
notice, not less than 10 days prior to the date on which any such
payment would otherwise be due, that moneys are available under
the NYSERDA Bond Indenture for the payment, in full or in part,
of principal and premium, if any, and interest then due on the
NYSERDA Bonds and the Trustee shall not have received written
notice from the Company that the obligation of the Company shall
not be so satisfied and discharged and the amount of any such
payment so reduced.
The interest payable on any interest payment date shall be
paid to the persons in whose names the Bonds of the Seventy-ninth
Series were registered at the close of business on the record
date for such payment of interest (except any such Bond which has
been called for redemption on a date fixed for such redemption
which is after such record date and prior to such interest
payment date) notwithstanding any cancellation of Bonds of the
Seventy-ninth Series upon any registration of transfer or
exchange thereof between such record date and such interest
payment date; except that if the Company shall default in the
payment of any interest due on such interest payment date such
defaulted interest shall be paid to the persons in whose names
Bonds of the Seventy-ninth Series are registered either at the
close of business on the date preceding the date of payment of
such defaulted interest or on a subsequent record date fixed for
the payment of such defaulted interest by notice given by mail by
or on behalf of the Company to holders of Bonds of the Seventy-
ninth Series not less than ten days preceding such subsequent
record date. The term "record date" as used herein shall mean,
with respect to a regular semi-annual interest payment date, the
close of business on the fifteenth day of the calendar month next
preceding such interest payment date or, if such fifteenth day
shall be a day on which banking institutions in The City of New
York are authorized by law to close, the next preceding day which
shall not be a day on which such institutions are so authorized
to close or, in the case of defaulted interest, the close of
business on any subsequent record date established as provided
above.
All of the Bonds of the Seventy-ninth Series shall be
executed in the name and on behalf of the Company by a facsimile
of the signature (or manual signature) of its President or a Vice
President, and imprinted with its corporate seal (or a facsimile
thereof), attested by a facsimile of the signature (or manual
signature) of its Secretary or an Assistant Secretary.
Bonds of the Seventy-ninth Series shall be lettered "RU"
and numbered consecutively from RU-1 upwards, or shall bear such
other letters as may be provided therefor by the Board of
Directors of the Company.
Except as provided in Section 1 of Part IV hereof, both
principal of and interest on the Bonds of the Seventy-ninth
Series (as well as any premium thereon applicable in case of any
redemption thereof prior to maturity) shall be payable at the
office of the Trustee, which in the case of Marine Midland Bank,
shall be its corporate trust office in the Borough of Manhattan,
The City of New York, State of New York, or at such other office
or agency in the Borough of Manhattan, The City of New York,
State of New York, as shall be maintained by the Company for such
purpose, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for public and
private debts.
SECTION 3. In the manner and subject to the terms and
conditions in this Section 3 provided, the Company, at its
option, shall have the right to redeem the outstanding Bonds of
the Seventy-ninth Series, either as a whole or in part, on any
date on or after July 1, 2004 and prior to maturity, whether or
not an interest payment date, upon notice given as hereinafter in
this Section 3 provided, at the applicable redemption prices
provided in the form of the definitive Bond of the Seventy-ninth
Series as contained in Section 6 of this Part II, together with
interest accrued to the date fixed for redemption. The Bonds of
the Seventy-ninth Series may also be redeemed at the option of
the Company, at any time, either as a whole or in part, at the
redemption price equal to 100% of the principal amount thereof,
together with interest accrued to the date fixed for redemption,
upon the occurrence of any of the events specified in Section
2.02.6 of the NYSERDA Bond Indenture.
Notwithstanding any other redemption provisions contained
herein, the Bonds of the Seventy-ninth Series are subject to
mandatory redemption in the event of any optional or mandatory
redemption of the NYSERDA Bonds, upon notice given as hereinafter
in this Section 3 provided, at the applicable redemption price
specified in the NYSERDA Bond Indenture for the NYSERDA Bonds
being redeemed, in such amount as, together with any moneys
available therefor under the NYSERDA Bond Indenture, shall be
required, in accordance with the provisions of the Participation
Agreement, to pay the principal of and premium, if any, and
interest on the NYSERDA Bonds so redeemed.
The Bonds of the Seventy-ninth Series are also subject to
mandatory redemption, as a whole but not in part, upon receipt by
the Trustee and the Company of a written statement (the
"Redemption Statement") from the NYSERDA Bond Trustee that the
principal of all NYSERDA Bonds then outstanding has been declared
to be immediately due and payable pursuant to Section 10.01 of
the NYSERDA Bond Indenture. The Company shall thereupon fix a
redemption date, to occur at least 30 days and not more than 90
days following receipt of the Redemption Statement, and shall
give written notice thereof (the "Redemption Notice") to the
Trustee and the NYSERDA Bond Trustee at least 30 days prior to
such date. No Redemption Notice shall be deemed to have been
given, and the Bonds of the Seventy-ninth Series shall not be
redeemed, if a written cancellation of the Redemption Statement
by the NYSERDA Bond Trustee is delivered to the Trustee and the
Company prior to the receipt of the Redemption Notice by the
NYSERDA Bond Trustee. Any such redemption of the Bonds of the
Seventy-ninth Series shall be at the redemption price equal to
100% of the principal amount thereof, together with interest
accrued to the date fixed for redemption.
No redemption of the Bonds of the Seventy-ninth Series,
either as a whole or in part, may be made except in connection
with the payment of a like principal amount of NYSERDA Bonds,
either by redemption or at maturity (stated or otherwise).
In case the Company shall at any time desire or be required
so to redeem part or all of the Bonds of the Seventy-ninth Series
then outstanding, the Company shall give to the Trustee notice in
writing at least 60 days prior to the redemption date fixed by
the Company (unless a shorter notice shall be satisfactory to the
Trustee) of the principal amount of Bonds of such series which it
desires or is required to redeem, specifying the date on which it
desires or is required to make redemption. There shall be
furnished to the Trustee a certificate or opinion executed by the
President or a Vice President and the Treasurer or an Assistant
Treasurer of the Company stating that the conditions precedent
specified in this Section 3 with respect to such redemption have
been complied with and the Trustee may conclusively rely thereon.
As soon as practicable thereafter, the Trustee shall select in
any manner deemed by it proper the numbers of the Bonds to be
redeemed in whole or in part and shall notify the Company in
writing of the number of the Bonds so selected. The Company
shall thereupon cause to be mailed to the respective registered
owners of the Bonds of the Seventy-ninth Series designated for
redemption, at least 30 days and not more than 90 days prior to
the date of redemption, at their addresses appearing upon the
Bond registration books, a notice of such intended redemption,
stating the redemption date and the redemption price and
designating the serial numbers of the Bonds of the Seventy-ninth
Series to be redeemed in whole or in part and the portion of the
principal amount of any such Bonds to be redeemed in part and
requiring that such Bonds be surrendered on the redemption date
at the corporate trust office of the Trustee, or at such other
office or agency as shall be maintained by the Company for such
purpose, for redemption at the said redemption price, giving
notice also that interest on such Bonds or such portions of Bonds
will not accrue after the designated redemption date. If less
than the whole of the principal of any Bond shall be called for
redemption, said notice shall also state that such Bond is to be
redeemed in part, and that, upon the presentation of such Bond
for redemption, there will be issued, in lieu of the unredeemed
portion of the principal thereof, a new Bond or Bonds of the same
series for an aggregate principal amount equal to such unredeemed
portion.
In case the Company shall desire to redeem all of the Bonds
of the Seventy-ninth Series outstanding on the date on which it
desires to make redemption, it shall give adequate notice of
redemption thereof by mailing in the same manner as for
redemption of less than all of the Bonds of such series.
The Trustee may, to the extent permitted by the provisions
of Section 4 of Article Tenth of the Indenture, accept the
certificate of the President or any Vice President or the
Treasurer of the Company as sufficient evidence that the
requirements as to mailing of notices of the call for redemption
have been fully complied with or the Trustee may, at its option
and at the expense and on behalf of the Company, give such notice
and take any other action required of the Company in connection
with such redemption.
SECTION 4. Prior to the redemption date specified in any
such notice, the Company shall deposit with the Trustee a sum of
money, of the character specified as the medium of payment in the
Bonds of the Seventy-ninth Series called for redemption, which
together with any moneys available therefor under the NYSERDA
Bond Indenture is sufficient to redeem, at the redemption price
payable as hereinbefore provided, the Bonds of such series
designated for redemption and the called part of any Bond of such
series called only in part, and to pay the interest accrued
thereon up to said redemption date, to be applied by the Trustee
to the payment of such Bonds (and the called part of any such
Bond) and such accrued interest thereon upon presentation and
surrender of such Bonds, together with duly executed instruments
of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company
for such purpose; and, after such deposit shall have been made,
such Bonds so called in whole and the called part of any such
Bond called only in part, whether or not presented for
redemption, shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on
or after the redemption date duly specified in said notice, and
claims for interest, if any, appertaining to such Bonds, and the
called part of any such Bond called only in part, maturing after
that date shall be void. All Bonds so redeemed shall forthwith
be cancelled and, upon its written request, delivered to the
Company or otherwise disposed of; and no Bonds shall be issued
hereunder in place of any such Bonds, except as otherwise
provided in Article Fourth of the Indenture and except that, if
less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with
proper instruments of transfer if required, at or after the time
fixed for the payment of said Bonds so called for redemption,
payment of the principal amount of the part thereof so called
shall be made upon surrender and cancellation of said Bond so
presented, and one or more Bonds of the same series, for a
principal amount equal to the uncalled and unpaid balance of the
principal amount of such Bond, will be executed by the Company
and shall be authenticated and delivered by the Trustee to the
owner of such Bond, without expense to such owner.
SECTION 5. The registered owner (or assigns) of any Bond
of the Seventy-ninth Series may at any time surrender the same at
the corporate trust office of the Trustee, or at any other office
or agency of the Trustee or the Company maintained for such
purpose, and with instruments of transfer satisfactory to the
Trustee, and subject to the terms, conditions and limitations
specified in the Indenture, shall be entitled to receive in
exchange therefor an equal principal amount of Bonds of said
series of other authorized denominations; and the Company will
provide, and the Trustee shall authenticate and deliver, the
Bonds necessary to make such exchange. The provisions of Section
12 of Article Second of the Original Indenture to the contrary
notwithstanding, no payment of a service charge shall be required
for any exchange or registration of transfer, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
SECTION 6. The definitive Bonds of the Seventy-ninth
Series, and the Trustee's Certificate to be inscribed on all
Bonds of said series, are to be substantially in the forms
following, respectively:
[FORM OF FACE OF DEFINITIVE BOND OF THE SEVENTY-NINTH SERIES]
No. RU $____
NIAGARA MOHAWK POWER CORPORATION
FIRST MORTGAGE BOND
7.20% SERIES DUE JULY 1, 2029
NIAGARA MOHAWK POWER CORPORATION, a New York corporation
(herein called the "Company"), for value received, hereby
promises to pay to , or registered assigns, the
principal sum of ONE HUNDRED AND FIFTEEN MILLION, SEVEN HUNDRED
AND FIVE THOUSAND DOLLARS ($115,705,000) on July 1, 2029, and to
pay interest from July 1, 1994 or from the January 1 or July 1,
as the case may be, next preceding the date of this Bond to which
interest has been paid or provided for on such principal sum at
the rate per annum specified in the title of this Bond semi-
annually on January 1 and July 1, in each year (computed on the
basis of a 360-day year of twelve 30-day months), until payment
of such principal sum has been made or duly provided for, to the
registered owner hereof as of the close of business on the
fifteenth day of the month next preceding the month in which an
interest payment is due, except as otherwise provided on the
reverse hereof or in the Indenture.
Both principal of and interest on this Bond (as well as any
premium hereon in case of the redemption hereof prior to
maturity) are payable at the corporate trust office of the
Trustee hereinafter named, in the Borough of Manhattan, City and
State of New York, or at such other office or agency in said
Borough as shall be maintained by the Company for such purpose,
in such coin or currency of the United States of America as at
the time of payment shall be legal tender for public and private
debts.
Reference is made to the further provisions of this Bond
set forth on the reverse hereof, which for all purposes have the
same effect as though fully set forth at this place.
This Bond shall not be valid or obligatory for any purpose
until authenticated by the execution by the Trustee of the
certificate inscribed hereon.
IN WITNESS WHEREOF, the Company has caused this Bond to be
executed in its corporate name by a facsimile of the signature
(or manual signature) of its President or a Vice President and
imprinted with its corporate seal (or a facsimile thereof),
attested by a facsimile of the signature (or manual signature) of
its Secretary or an Assistant Secretary.
Dated: NIAGARA MOHAWK POWER
CORPORATION
By_______________________
Vice President
[Corporate Seal]
Attest:
________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the Bonds of the Series designated above
described in the within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By______________________
Authorized Officer
[FORM OF REVERSE OF DEFINITIVE BOND
OF THE SEVENTY-NINTH SERIES]
This Bond is one of a duly authorized issue of Bonds of the
Company, of an unlimited (except as provided in the Indenture
hereinafter mentioned) permitted principal amount, all issued or
to be issued in one or more series (the Bonds of the series of
which this Bond is a part being herein called the "Bonds of the
Seventy-ninth Series"), all of the Bonds of all series being
issued or to be issued under and, irrespective of the time of
issue, all equally secured by a Mortgage Trust Indenture (herein,
with all instruments stated to be supplemental thereto to which
the Trustee hereinafter named is or shall be a party, called the
"Indenture"), dated as of October 1, 1937, to Marine Midland Bank
(successor to Marine Midland Bank, N.A., a national banking
association and, in turn, successor to Marine Midland Bank, a
corporation duly organized and existing under the laws of the
State of New York, formerly named The Marine Midland Trust
Company of New York, Marine Midland Grace Trust Company of New
York and Marine Midland Bank -- New York and hereinafter, with
its successors as defined in the Indenture, referred to as the
"Trustee"), to which Indenture, an executed counterpart of which
is on file with the Trustee, reference is hereby made for a
description of the property mortgaged and pledged to the Trustee,
and for a statement of the nature and extent of the security, the
rights of the holders of the Bonds with respect to such security,
and the terms and conditions upon which said Bonds are or are to
be issued and secured; but neither the foregoing reference to the
Indenture, nor any provision of this Bond or of the Indenture,
shall affect or impair the obligation of the Company, which is
absolute and unconditional, to pay, at the stated or accelerated
maturities herein provided, the principal of, and premium, if
any, and interest on this Bond as herein provided.
Notwithstanding any other provision contained herein, the
obligation of the Company to make payments of the principal of
and premium, if any, and interest on the Bonds of the Seventy-
ninth Series shall be fully or partially satisfied and
discharged, and the amount of any such payments shall be reduced,
to the extent that the Trustee shall have received written
notice, not less than 10 days prior to the date on which any such
payment would otherwise be due, that moneys are available under
the Indenture of Trust (the "NYSERDA Bond Indenture") dated as of
October 1, 1992 between the New York State Energy Research and
Development Authority ("NYSERDA") and The Bank of New York, as
trustee (such trustee and any successor thereto being hereinafter
referred to as the "NYSERDA Bond Trustee"), for the payment, in
full or in part, of principal and premium, if any, and interest
then due on the New York State Energy Research and Development
Authority Pollution Control Refunding Revenue Bonds (Niagara
Mohawk Power Corporation Project), 1994 Series A (the "NYSERDA
Bonds") and the Trustee shall not have received written notice
from the Company that the obligation of the Company shall not be
so satisfied and discharged in the amount of any such payment so
reduced.
The Indenture and the rights and obligations of the Company
and of the holders of the Bonds thereunder may be changed or
modified at any time upon the consent and approval of the Company
and of the holders of 66-2/3 per cent in principal amount of the
Bonds then outstanding affected by such change or modification,
given as provided in the Indenture, and in the manner and subject
to the limitations therein set forth; provided, that no such
change or modification shall (a) alter or impair the obligation
of the Company to pay the principal of, and premium, if any, and
interest on any Bond at the time and place and at the rate and in
the currency provided therein, without the consent of the holder
of such Bond, (b) permit the creation by the Company of any
mortgage, or lien in the nature of a mortgage, ranking prior to
or pari passu with the lien of the Indenture, or alter adversely
to the Bondholders the character of the lien of the Indenture,
except as in the Indenture otherwise expressly provided, unless
the creation of such mortgage or lien, or such alteration of the
lien of the Indenture, be consented to by the holders of all
outstanding Bonds, (c) affect the Trustee unless consented to by
the Trustee or (d) permit a reduction of the percentage required
for any change or modification of the Indenture, without the
consent of the holders of all outstanding Bonds.
The principal of this Bond together with accrued interest
thereon may be declared, or may become, due and payable before
maturity in certain events, on the conditions, in the manner and
with the effect set forth in the Indenture.
Subsequent to the initial authentication of the Bonds of
the Seventy-ninth Series, each Bond of the Seventy-ninth Series
shall be dated as of the date of its authentication, and shall
bear interest from the January 1 or July 1, as the case may be,
next preceding the date of such Bond to which interest has been
paid or provided for (unless the date of such Bond is on a
January 1 or a July 1 to which interest has been paid or provided
for, in which case such Bond shall bear interest from its date,
or unless the date of such Bond is prior to the payment of any
interest on the Bonds of the Seventy-ninth Series, in which case
such Bond shall bear interest from July 1, 1994). However, so
long as there is no existing default in the payment of interest
on the Bonds of the Seventy-ninth Series, any such Bond
authenticated by the Trustee after the close of business on the
record date for any interest payment date and prior to such
interest payment date shall be dated the date of its
authentication, but shall bear interest from such interest
payment date; provided, however, that if and to the extent that
the Company shall default in the payment of interest on such
interest payment date, then such Bond shall bear interest from
the January 1 or July 1, as the case may be, next preceding the
date of such Bond to which interest has previously been paid or
made available for payment on the outstanding Bonds of the
Seventy-ninth Series or, if no interest has been paid on such
Bonds, from July 1, 1994.
The Bonds of the Seventy-ninth Series may be redeemed at
the option of the Company, either as a whole or in part, at any
time, on and after July 1, 2004 at the following redemption
prices (expressed in percentages of principal amount):
In the 12 Months' Period
Ending (and Including)
June 30, Redemption
Price
2005 102%
2006 101
2007 and thereafter 100
together, in each case, with interest accrued to the date fixed
for redemption, upon notice mailed to the respective registered
owners of the Bonds of the Seventy-ninth Series designated for
redemption at least 45 days and not more than 90 days prior to
the date of redemption, at their addresses appearing upon the
Bond registration books, all subject to the conditions more fully
set forth in the Indenture. The Bonds of the Seventy-ninth
Series may also be redeemed at the option of the Company, at any
time, either as a whole or in part, at the redemption price equal
to 100% of the principal amount thereof, together with interest
accrued to the date fixed for redemption, upon the occurrence of
any of the events specified in Section 2.02.6 of the NYSERDA Bond
Indenture.
The Bonds of the Seventy-ninth Series are subject to
mandatory redemption in the event of any optional or mandatory
redemption of the NYSERDA Bonds, in each case upon notice given
as provided above, at the applicable redemption price specified
in the NYSERDA Bond Indenture for the NYSERDA Bonds being
redeemed, in such amount as, together with any moneys available
therefor under the NYSERDA Bond Indenture, shall be required, in
accordance with the provisions of the Participation Agreement
dated as of October 1, 1992 between the Company and NYSERDA, to
pay the principal of and premium, if any, and interest on the
NYSERDA Bonds so redeemed.
The Bonds of the Seventy-ninth Series are also subject to
mandatory redemption, as a whole but not in part, at a redemption
price equal to 100% of the principal amount thereof, together
with interest accrued to the date fixed for redemption, upon a
declaration by the NYSERDA Bond Trustee that the principal of all
NYSERDA Bonds then outstanding is immediately due and payable
pursuant to Section 10.01 of the NYSERDA Bond Indenture and upon
written notice thereof to the NYSERDA Bond Trustee at least 30
days prior to the date fixed for redemption, provided that no
written cancellation of such declaration shall have been received
by the Trustee and the Company prior to notice of such redemption
having been given to the NYSERDA Bond Trustee.
The Bonds of the Seventy-ninth Series may not be redeemed,
either as a whole or in part, except in connection with the
payment of a like principal amount of NYSERDA Bonds, either by
redemption or at maturity (stated or otherwise).
No recourse shall be had for the payment of any part of
principal of, or interest on, this Bond (as well as any premium
hereon in case of the redemption hereof prior to maturity) or for
any claim based hereon or thereon, or otherwise in any manner
with respect hereto, or with respect to the Indenture, to or
against any incorporator or any past, present or future
stockholder, officer or director of the Company or of any
successor corporation, either directly or through the Company or
any successor corporation, whether by virtue of any constitution,
statute or other provision of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability being
expressly waived and released by the acceptance of this Bond and
as part of the consideration for the issue hereof, as provided in
the Indenture.
If this Bond or any part hereof is called for redemption
and payment duly provided, this Bond or such part hereof shall
cease to bear interest from and after the date fixed for such
redemption.
Registration of transfer of this Bond may be made by the
registered owner (or assigns) in person or by duly authorized
attorney, at the corporate trust office of the Trustee, or at
such other offices or agencies of the Trustee or the Company as
shall be maintained for such purpose, upon the surrender of this
Bond, and thereupon a new Bond or Bonds of authorized
denominations of the same series for a like aggregate principal
amount will be issued to the registered transferee, all in the
manner and subject to the terms, conditions and limitations
specified in the Indenture. No service charge shall be made for
any exchange or registration of transfer, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto. The
Company and the Trustee may deem and treat the person in whose
name this Bond is registered as the absolute owner hereof for the
purpose of receiving payment of or on account of the principal,
and premium, if any, and interest due hereon (subject to the
provisions of the first paragraph of this Bond), and for all
other purposes, and neither the Company, the Trustee nor any
paying agent or agency shall be affected by any notice to the
contrary, whether this Bond or such premium, if any, or interest
shall be overdue or not.
PART III
MAINTENANCE FUND PROVISIONS AND
RESTRICTIONS AS TO DIVIDENDS
SECTION 1. The Company covenants that so long as any of
the Bonds of the Seventy-ninth Series shall be outstanding, it
will comply with the provisions of Section 22 (providing for a
maintenance fund for the benefit of Bonds issued under the
Indenture) and Section 23 (providing for certain restrictions on
the payment of dividends) of Article Fifth of the Indenture as
added by the Supplemental Indenture dated as of March 1, 1978.
PART IV.
PROVISIONS RELATING TO INSTITUTIONAL HOLDERS
SECTION 1. Any term of the Indenture or of the Bonds of
the Seventy-ninth Series to the contrary notwithstanding, so long
as the NYSERDA Bond Trustee (herein called the "Original Holder")
or any of its nominees shall be a holder of any of the Bonds of
the Seventy-ninth Series, or if any other institutional holder or
its nominee or nominees shall at any time be the holder or
holders of at least 5% in aggregate principal amount of the Bonds
of the Seventy-ninth Series then outstanding (any such other
institutional holder being herein called an "Institutional
Holder"), payment to such holder of the principal of and the
premium, if any, on any such Bond being redeemed in part and
payment of the interest on such Bond shall be made in such manner
and at such place as shall be specified by the Original Holder or
such Institutional Holder in a written notice filed with the
Company, and without any requirement of surrendering such Bond to
the Trustee or noting payments thereon. As a condition to making
any such payment, there shall be filed with the Trustee an
agreement by the Original Holder or other Institutional Holder
(designating its nominee or nominees, if any) that in the event
that it shall sell or transfer any such Bond it will (a) make a
notation thereon of all principal, if any, paid on such Bond and
will also note the date to which interest has been paid on such
Bond, and (b) promptly notify the Company and the Trustee of the
name and address of the transferee of any such Bond so sold or
transferred by such holder. Upon request of the Trustee there
shall be furnished to the Trustee a certificate or opinion made
by the President or a Vice President and the Treasurer or an
Assistant Treasurer of the Company whether the holder of any of
the Bonds of the Seventy-ninth Series, other than the Original
Holder or its nominee or nominees, is an Institutional Holder and
the Trustee may conclusively rely thereon. The Trustee shall not
be liable or responsible to the Original Holder or any
Institutional Holder or to the Company or to any other person for
any act or omission to act on the part of the Company or the
Original Holder or such Institutional Holder in connection with
the foregoing. The Company will indemnify and save the Trustee
harmless against any liabilities resulting from any such act or
omission.
SECTION 2. Any term of the Indenture or of the Bonds of
the Seventy-ninth Series to the contrary notwithstanding, so long
as the Original Holder or any Institutional Holder, or a nominee
of the Original Holder or such Institutional Holder, shall be a
holder of any of the Bonds of the Seventy-ninth Series, in case
of any partial redemptions of the Bonds of the Seventy-ninth
Series the Trustee shall prorate the principal amount of such
Bonds to be redeemed among all holders of such Bonds in
proportion to the principal amount of such Bonds registered in
the name of each such holder and shall then designate for
redemption with respect to each such holder particular Bonds of
such series or portions thereof equal to the principal amount of
Bonds to be redeemed so prorated to such registered owner;
PROVIDED, HOWEVER, that in any such prorating pursuant to this
paragraph the Trustee shall, according to such method as it shall
deem proper in its discretion, make such adjustments by
increasing or decreasing by not more than $1,000 the amount which
would be allocable on the basis of exact proportion to any one or
more holders of such Bonds, as may be required to provide that
the principal amount so prorated shall be in each instance an
integral multiple of $1,000.
PART V.
FUTURE AMENDMENTS OF INDENTURE
SECTION 1. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Fourth of the Indenture, as it may heretofore,
hereby and hereafter be or have been supplemented and amended, as
follows:
(A) by deleting the provisions of subparagraph 1(b) of
Paragraph F of Section 6 of Article Fourth thereof, of
subparagraph 1(b) of Paragraph E of Section 7 of Article
Fourth thereof and of subsection 1(b) of Section 8 of
Article Fourth thereof;
(B) by restating Paragraph A of Section 7 of Article
Fourth of the Indenture so that, as so restated, it shall
be and read as follows:
"A. The Bonds, Underlying Mortgage Obligations and
Constituent Corporation Bonds, if any, for which Bonds
are then to be issued under this Section 7, shall not
previously have been made the basis for the issuance
of Bonds or for the withdrawal of money under any
provision of this Indenture, or retired out of moneys
paid out by the Trustee under the provisions of
Section 9 of this Article Fourth or Section 2 of
Article Seventh hereof, or retired with moneys
deposited under an Underlying Mortgage or Constituent
Corporation Mortgage and representing the proceeds of
any insurance on the Mortgaged Property or of any part
of the Mortgaged Property which shall have been
released from the lien of this Indenture, or used as
the basis for a credit under Section 4 of Article
Third of this Indenture.";
and
(C) by restating subsection (a) of subparagraph 3 of
Paragraph E of Section 7 of Article Fourth of the Indenture
so that, as so restated, it shall be and read as follows:
"(a) That the Bonds, Underlying Mortgage
Obligations and Constituent Corporation Bonds, if any,
for which Bonds are then to be issued under this
Section 7, had not been made the basis for the
issuance of Bonds or for the withdrawal of money under
any provision of this Indenture, and had not been
retired out of moneys paid out by the Trustee under
the provisions of Section 9 of this Article Fourth or
Section 2 of Article Seventh hereof, or retired with
moneys deposited under an Underlying Mortgage or
Constituent Corporation Mortgage and representing the
proceeds of any insurance on the Mortgaged Property or
of any part of the Mortgaged Property which shall have
been released from the lien of this Indenture, and had
not been used as the basis for a credit under Section
4 of Article Third of this Indenture."
SECTION 2. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Ninth of the Indenture, as it may heretofore,
hereby and hereafter be or have been supplemented and amended, by
adding the following Section 19 at the end of said Article Ninth:
"SECTION 19. All parties to this Indenture agree, and
each holder of Bonds by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit
instituted by any holder, or group of holders, of more than
10% in aggregate principal amount of the Bonds outstanding,
or to any suit instituted by any holder of Bonds for the
enforcement of the payment of the principal of (or premium,
if any) or interest on any Bond on or after the maturity
date expressed in such Bond."
SECTION 3. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Eleventh of the Indenture, as it may heretofore,
hereby and hereafter be or have been supplemented and amended, by
amending the first paragraph of Section 2 thereof so that, as so
amended, it shall be and read as follows:
"SECTION 2. Anything herein contained to the
contrary notwithstanding, any moneys at any time
deposited with the Trustee pursuant to the provisions
hereof for the payment of the principal, premium or
interest of or upon any Bond or interest coupon and
remaining unclaimed for three (3) years after the date
upon which such payment shall have become due shall,
upon the request of the Company, be repaid to it by
the Trustee; provided, that, before being required to
make any such repayment, the Trustee may, at the
expense of the Company, cause to be published, once a
week for four (4) successive calendar weeks, in a
daily newspaper, printed in the English language,
published and of general circulation in the Borough of
Manhattan, The City of New York, State of New York,
and in a daily newspaper, printed in the English
language, published and of general circulation in each
of the other cities (if any) in which such principal,
premium or interest, as the case may be, was payable
in accordance with the terms of the Bond or interest
coupon with respect to which such moneys were
deposited, notice that the said moneys have not been
claimed, and that after a date named in such notice,
the balance of such moneys then unclaimed will be
repaid to the Company."
SECTION 4. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Twelfth of the Indenture, as it may heretofore,
hereby and hereafter be or have been supplemented and amended, by
amending Paragraph A of Section 2 of Article Twelfth of the
Indenture by the addition of the following:
"The Trustee may, and, upon written request of the
Company or of the holders of a majority in principal
amount of the Bonds outstanding, shall, fix a day, not
less than ten (10) days prior to the date of first
publication of notice of such meeting, as a record
date for the determination of holders of Registered
Bonds without coupons, and of Coupon Bonds registered
as to principal (otherwise than to bearer), entitled
to notice of and to vote at such meeting and any
adjournment thereof, and only such registered holders
who shall have been such on the date so fixed shall be
entitled to notice of and to vote such Bonds at such
meeting, and the Registered Bonds without coupons, and
the Coupon Bonds registered as to principal (otherwise
than to bearer), on such record date may be voted at
such meeting and any adjournment thereof only by the
persons who shall have been registered holders of such
Bonds on such record date or their proxies,
notwithstanding any registration of transfer of any
such Bonds on the books of the Company after such
date. If any Registered Bonds without coupons shall
be transferred or shall be exchanged for Coupon Bonds
after such record date, or if any Coupon Bonds
registered as to principal (otherwise than to bearer)
on such record date shall thereafter be registered to
bearer, a suitable notation shall be made upon such
Bonds at the time of registration of transfer from
such registered holder's name or exchange, as the case
may be, to record the fact that the registered holder
of such Bonds on said record date or his proxies shall
be the only persons entitled to vote such Bonds at the
meeting. If any Coupon Bond not registered as to
principal upon such record date is thereafter so
registered (otherwise than to bearer) or is thereafter
exchanged for a Registered Bond, the first registered
holder in whose name such Bond shall be so registered
shall be deemed to have been the registered holder of
such Bond on the record date for the purposes of this
section, and upon such registration or exchange a
notice of such meeting shall be delivered to such
registered holder. In any case where a record date is
fixed as aforesaid, the list of Bondholders referred
to in Paragraph B of this Section 2 shall be based
upon the holdings of Bonds on such record date, but
shall also include the holder of Coupon Bonds
registered as to principal (otherwise than to bearer)
after such record date and prior to such meeting and
the holders of Registered Bonds received in exchange
for Coupon Bonds after such record date and prior to
such meeting."
SECTION 5. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Twelfth of the Indenture, as it may heretofore,
hereby and hereafter be or have been supplemented and amended, by
adding the following Paragraph G to Section 2 thereof:
"G. Whenever the Company shall deliver to the
Trustee an instrument or instruments executed by
holders of at least sixty-six and two-thirds per
centum (66-2/3%) in aggregate principal amount of the
Bonds affected and outstanding at the time of such
delivery, consenting to the substance of a proposed
modification or amendment to the provisions hereof,
thereupon the Trustee shall execute a supplemental
indenture in substantially the form provided for by or
in such instrument or instruments, and no holder of
any Bond shall have any right or interest to object to
the execution of said supplemental indenture or to
object to any of the terms or provisions therein
contained, or the operation thereof, or in any manner
to question the propriety of the execution thereof, or
to enjoin or restrain the Trustee or the Company from
executing the same or from taking any action pursuant
to the provisions thereof, provided that, in lieu of
an instrument or instruments executed by holders of
Bonds, the consent of the holders of any series of
Bonds to any such proposed modification or amendment
may be set forth in and evidenced by the supplemental
indenture establishing the terms and provisions of
such series; and provided further that no such change
or modification shall (a) alter or impair the
obligation of the Company to pay the principal and
interest on any Bond outstanding at the time and place
and at the rate and in the currency prescribed
therein, without the consent of the holder of such
Bond, (b) permit the creation by the Company of any
mortgage, or lien in the nature of a mortgage, ranking
prior to or pari passu with the lien of the Indenture,
or alter adversely to the Bondholders the character of
the lien of the Indenture, except as in the Indenture
otherwise expressly provided, unless the creation of
such mortgage or lien, or such alteration of the lien
of the Indenture, be consented to by the holders of
all outstanding Bonds, (c) affect the Trustee unless
consented to by the Trustee or (d) permit a reduction
of the percentage required for any change or
modification of the Indenture, without the consent of
the holders of all outstanding Bonds.
It shall not be necessary for any consent of
Bondholders under this Section to approve the
particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent
approves the substances of the matters to which such
consent relates. Any consent executed and delivered
by any Bondholder shall be binding upon all future
holders of Bonds held by such Bondholder at the time
of execution of such consent, including without
limitation any Bonds issued in substitution or
exchange therefor, whether upon transfer or
otherwise."
SECTION 6. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Thirteenth of the Indenture, as it may
heretofore, hereby and hereafter be or have been supplemented and
amended, by amending the first paragraph of Section 1 thereof so
that, as so amended, it shall be and read as follows:
"Section 1. Any demand, consent, waiver, request,
notice or other instrument in writing required or
provided by this Indenture to be signed or executed by
the holders of any Bonds may be in any number of
concurrent writings of similar tenor, and may be
signed or executed by such holders in person or by
attorney appointed in writing.
The fact and date of the execution by any person of any
such instrument, or of the writing appointing any such
attorney, and of the ownership by any person of any Bonds,
may be proved in any manner deemed sufficient by the
Trustee, and such proof shall be conclusive in favor of the
Trustee and the Company.
Without limiting the generality of the foregoing
paragraph:
A. The signature on a proxy, consent or other such
instrument or writing, if believed by the Trustee to be
genuine, shall be sufficient to establish the fact of the
execution thereof.
B. The fact of the ownership of any Coupon Bond which
shall not at the time be registered as to principal or
shall be registered to bearer, and the denomination and
serial number of such Bond and the date of holding the
same, may be proved by a certificate executed by any trust
company, bank, banker or other depositary (wherever
situated), showing that at the date therein mentioned the
person named in such certificate had on deposit with such
depositary the Bond described in such certificate. For all
purposes of this Indenture and of any proceedings pursuant
hereto for the enforcement hereof or otherwise, to the
extent permitted by the provisions of Section 4 of Article
Tenth, such person shall be deemed to continue to be the
owner of such Bond until the Trustee shall have received
notice in writing to the contrary. The ownership of any
Registered Bond or of any Coupon Bond which shall at the
time be registered as to principal (otherwise than to
bearer) shall be proved by the register of Bonds maintained
for such purpose."
SECTION 7. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Fourth of the Indenture, as it may heretofore,
hereby and hereafter be or have been supplemented and amended, by
amending subparagraph (3) of Paragraph E of Section 9 thereof so
that, as so amended, it shall be and read as follows:
"(3) A statement, in form satisfactory to the
Trustee, signed by the President or a Vice President
and the Treasurer or an Assistant Treasurer of the
Company, and verified on information and belief by one
of such officers not more than sixty (60) days prior
to the receipt thereof by the Trustee, certifying (a)
that the Bonds so delivered had previously been
actually negotiated by the Company for value; (b) that
the Company had bona fide purchased or contracted to
purchase the said Bonds, Underlying Mortgage
Obligations and Constituent Corporation Bonds at
prices (inclusive of accrued interest) to be set forth
in the statement, and that such prices were not in
excess of 115% of the principal amount of said Bonds,
Underlying Mortgage Obligations and Constituent
Corporation Bonds; (c) that the Company is not, so far
as known to the officers signing such statement, in
default with respect to the performance or observance
of any covenant or agreement contained in this
Indenture; and (d) that it is not then necessary to
retire the Underlying Mortgage Obligations to be
purchased to eliminate any excess of the nature
described in Paragraph D of Section 7 hereof."
SECTION 8. The Company reserves the right, without any
consent or other action by holders of the Bonds of the Seventy-
ninth Series or of any subsequently created series, to amend at
any time Article Seventh of the Indenture, as it may heretofore,
hereby and hereafter be or have been supplemented and amended, by
amending Paragraph E of Section 2 thereof so that, as so amended,
it shall be and read as follows:
"E. To the purchase of Bonds of any series issued
and outstanding hereunder or of Underlying Mortgage
Obligations or of Constituent Corporation Bonds at not
in excess of 115% of the principal amount thereof, in
accordance with the provisions of Paragraph E of
Section 9 of Article Fourth."
PART VI.
THE TRUSTEE
SECTION 1. The Trustee hereby accepts the trusts hereby
declared and provided, and agrees to perform the same upon the
terms and conditions set forth in the Original Indenture and in
the indentures supplemental thereto including this Supplemental
Indenture and upon the following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Supplemental Indenture, or for or in respect of the recitals
contained herein, all of which recitals are made by the Company
solely. To the extent permitted by the provisions of Section 4
of Article Tenth of the Indenture, the Trustee shall not be
answerable or accountable for anything whatsoever in connection
with this Supplemental Indenture except for its own wilful
misconduct or negligence.
PART VII.
MISCELLANEOUS PROVISIONS
SECTION 1. This Supplemental Indenture shall, pursuant to
the provisions of Section 4 of Article Twelfth of the Indenture,
hereafter form a part of the Indenture; and all the terms and
conditions contained in this Supplemental Indenture as to any
provision authorized to be contained herein shall be and be
deemed to be part of the terms and conditions of the Indenture
for any and all purposes. Except as expressly amended and
supplemented by this Supplemental Indenture, the Indenture is
hereby ratified and confirmed in all respects.
SECTION 2. This Supplemental Indenture may be
simultaneously executed in any number of counterparts, and each
of such counterparts shall for all purposes be deemed to be an
original and shall remain in full force and effect, and all such
counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be executed in their respective
corporate names by their respective officers thereunto duly
authorized, and their respective corporate seals to be hereto
attached and to be duly attested, all as of the day and year
first above written.
NIAGARA MOHAWK POWER
CORPORATION
[CORPORATE SEAL] By /s/ John W. Powers
Sr. Vice President
Attest:
/s/ Harold J. Bogan ____________________
Secretary
MARINE MIDLAND BANK
[CORPORATE SEAL] By /s/ Metin Caner
Assistant Vice President
Attest:
/s/ Ellen M. Hughes
Corporate Trust Officer
STATE OF NEW YORK )
): ss.:
COUNTY OF ONONDAGA )
On this 1st day of July, 1994, before me personally came
John W. Powers, to me personally known, who, being by me duly
sworn, did depose and say that he resides at 112 Wooded Heights
Drive, Camillus, New York, 13031; that he is the Senior Vice
President of NIAGARA MOHAWK POWER CORPORATION, the corporation
described in and which executed the above instrument; that he
knows 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 he
signed his name thereto by like order.
/s/ Ingrid E. Clark
Notary Public
STATE OF NEW YORK )
): SS.:
COUNTY OF NEW YORK )
On this 30th day of June, 1994, before me personally came
Metin Caner to me personally known, who, being by me duly sworn,
did depose and say that he resides at 2350 Broadway, New York,
New York 10024; that he is an Assistant Vice President of MARINE
MIDLAND BANK, the trust company described in and which executed
the above instrument; that he knows 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 he signed his name thereto by like order.
/s/ Juan C. Ospina
Notary Public
Exhibit 10-23(A)
November 8, 1994
Mr. John W. Powers
Senior Vice President -
Finance & Corporate Services
Niagara Mohawk Power Corporation
300 Erie Boulevard West
Syracuse, New York 13202
Dear Mr. Powers:
This letter confirms the terms of the recent agreement reached
between you and Niagara Mohawk Power Corporation (the "Company")
relating to the continuation of your employment by the Company.
You have agreed to forego electing to immediately retire and have
thereby waived your options under the Company's Voluntary Employee
Reduction Program. You have agreed to continue your employment
until December 31, 1996, at which time you will retire from
employment by the Company.
In consideration for your agreement to continue your employment by
the Company until December 31, 1996, the Company agrees to the
following:
(1) Following the successful closing of the sale of HYDRA-CO
Enterprises, Inc., you will be entitled to a lump sum payment of
$30,000. This payment will not be included in the calculation of
your benefit under the Company's Supplemental Executive Retirement
Plan ("SERP").
(2) Upon your retirement on December 31, 1996, you will be
entitled to receive a severance allowance in an amount equal to
one-half of your annual salary in effect at that time. In the
event of your death prior to December 31, 1996, the severance
allowance would be paid to your designated beneficiary or, if no
such beneficiary is designated, your estate.
(3) Upon your retirement on December 31, 1996, your target benefit
under the SERP will be no less than the current target benefit of
$123,479. Furthermore, the calculation of your SERP target benefit
will include fees you receive during 1994, 1995 and 1996 as a
member of the Board of Directors of the Company's subsidiary
Canadian Niagara Power Company, Limited.
Except as provided above, the terms and conditions of the
Employment Agreement dated as of January 1, 1993 between the
Company and you shall remain in full force and effect.
Please acknowledge your understanding of this agreement by
executing this document in the space provided below.
NIAGARA MOHAWK POWER CORPORATION
By:______________________________
David J. Arrington
Senior Vice President -
Human Resources
Accepted and Agreed:
__________________ _______________________________
Date John W. Powers
Exhibit 11
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARIES
COMPUTATION OF AVERAGE NUMBER OF SHARES OF COMMON STOCK OUTSTANDING
Average Number
(1) (2) of Shares
Shares of Number (3) Outstanding as
Common of Days Share Days Shown on Consolidated
Year Ended December 31, Stock Outstanding (2 x 1) Statement of Income
(3/Number of days
in year)
1994
January 1 - December 31 142,427,057 365 51,985,875,805
Shares sold at various times
during the year -
Employee Savings Fund Plan 857,700 * 152,153,100
Dividend Reinvestment Plan 1,026,709 * 152,123,611
144,311,466 52,290,152,516 143,260,692
1993
January 1 - May 4 137,159,607 124 17,007,791,268
Shares sold May 5 4,494,000
May 5 - December 31 141,653,607 241 34,138,519,287
Shares sold at various times
during the year -
Employee Savings Fund Plan 140,000 22 3,080,000
Dividend Reinvestment Plan 632,341 * 102,395,031
Acquisition - Syracuse
Suburban Gas Company, Inc. 1,109 * 350,374
142,427,057 51,252,135,960 140,416,811
1992
January 1 - December 31 136,099,654 366 49,812,473,364
Shares sold at various times
during the year -
Employee Savings Fund Plan 240,866 * 45,435,347
Dividend Reinvestment Plan 463,736 * 59,130,626
Acquisition - Syracuse
Suburban Gas Company, Inc. 355,351 * 67,443,538
137,159,607 49,984,482,875 136,569,625
* Number of days outstanding not shown as shares represent an accumulation of weekly, monthly
and quarterly sales throughout the year. Share days for shares sold are based on
the total number of days each share was outstanding during the year.
Note: Earnings per share calculated on both a primary and fully diluted basis are the same due to
the effects of rounding.
Exhibit 12
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
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
Year Ended December 31,
1994 1993 1992 1991 1990
A. Net Income per Statements of Income (a) $176,984 $271,831 $256,432 $243,369 $ 82,878
B. Taxes Based on Income or Profits 111,469 147,075 155,504 133,895 61,119
C. Earnings, Before Income Taxes 288,453 418,906 411,936 377,264 143,997
D. Fixed Charges (b) 315,274 319,197 332,413 346,255 347,957
E. Earnings Before Income Taxes and Fixed
Charges 603,727 738,103 744,349 723,519 491,954
F. Allowance for Funds Used During Construction 9,079 16,232 21,431 18,931 21,414
G. Earnings Before Income Taxes and Fixed
Charges without AFC $594,648 $721,871 $722,918 $704,588 $470,540
Preferred Dividend Factor:
H. Preferred Dividend Requirements $ 33,673 $ 31,857 $ 36,512 $ 40,411 $ 42,300
I. Ratio of Pre-Tax Income to Net Income
(C / A) 1.63 1.54 1.61 1.55 1.74
J. Preferred Dividend Factor (H x I) $ 54,887 $ 49,060 $ 58,784 $ 62,637 $ 73,602
K. Fixed Charges as above (D) 315,274 319,197 332,413 346,255 347,957
L. Fixed Charges and Preferred Dividends
Combined $370,161 $368,257 $391,197 $408,892 $421,559
M. Ratio of Earnings to Fixed Charges
(E / D) 1.91 2.31 2.24 2.09 1.41
N. Ratio of Earnings to Fixed Charges
without AFC (G / D) 1.89 2.26 2.17 2.03 1.35
O. Ratio of Earnings to Fixed Charges and
Preferred Dividends Combined (E / L) 1.63 2.00 1.90 1.77 1.17
(a) Includes the effects of amortization of amounts deferred, under the rate agreement entered
into in 1989, $15,746 for 1993, $20,257 for 1992 and $31,176 for 1991.
(b) Includes a portion of rentals deemed representative of the interest factor $29,396 for 1994,
$27,821 for 1993, $31,697 for 1992, $34,616 for 1991, and $29,088 for 1990.
Exhibit 21
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
Subsidiaries of the Registrant
NAME OF COMPANY STATE OF ORGANIZATION
Opinac Energy Corporation Province of Ontario, Canada
(Note 1)
NM Uranium, Inc. Texas
HYDRA-CO Enterprises, Inc. (Note 2) New York
EMCO-TECH, Inc. (Note 3) New York
NM Suburban Gas, Inc. New York
NM Holdings, Inc. New York
Note 1: At December 31, 1994, Opinac Energy Corporation owns
Canadian Niagara Power Company, Limited, which is
incorporated in the Province of Ontario, Canada.
Canadian Niagara Power Company, Limited, owns Cowley
Ridge Partnership (an Alberta, Canada general partnership)
and Cowley Ridge Wind Power Company, Inc.
(incorporated in the Province of Alberta, Canada).
Note 2: On January 9, 1995, the Company sold HYDRA-CO
Enterprises, Inc. and its interest in all affiliates
and partnerships except Moreau Manufacturing
Corporation and Beebee Island Corporation.
Note 3: EMCO-TECH, Inc. is inactive at December 31, 1994.
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (Nos. 33-36189, 33-42720, 33-42721,
33-42771 and 33-54829) and to the incorporation by reference in the
Prospectus constituting part of the Registration Statement on Form S-3
(Nos. 33-45898, 33-50703, 33-51073, 33-54827, 33-55546 and 33-59594) of
Niagara Mohawk Power Corporation of our report dated February 1, 1995
appearing in the Company's Form 10-K dated March 23, 1995. We also
consent to the incorporation by reference of our report on the financial
statement schedules, which appears in this Form 10-K.
/s/ PRICE WATERHOUSE
Syracuse, New York
March 23, 1995
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) 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 March 23, 1995 By/s/ Steven W. Tasker
Steven W. Tasker
Vice President-Controller
and Principal Accounting Officer
Pursuant to the requirements of the Securities Exchange
Act of 1934, this report has been signed below by the following
persons on behalf of the Registrant and in the capacities and on
the dates indicated.
SIGNATURE TITLE DATE
/s/ William F. Allyn Director March 23, 1995
William F. Allyn
/s/ Lawrence Burkhardt, III Director March 23, 1995
Lawrence Burkhardt, III
/s/ Douglas M. Costle Director March 23, 1995
Douglas M. Costle
/s/ Edmund M. Davis Director March 23, 1995
Edmund M. Davis
Chairman of the
Board of Directors
and Chief Executive
/s/ William E. Davis Officer March 23, 1995
William E. Davis
/s/ William J. Donlon Director March 23, 1995
William J. Donlon
/s/ Edward W. Duffy Director March 23, 1995
Edward W. Duffy
/s/ John M. Endries Director and President March 23, 1995
John M. Endries
/s/ Henry A. Panasci, Jr. Director March 23, 1995
Henry A. Panasci, Jr.
/s/ Donald B. Riefler Director March 23, 1995
Donald B. Riefler
/s/ John G. Wick Director March 23, 1995
John G. Wick
Senior Vice President
and Principal Financial
/s/ John W. Powers Officer March 23, 1995
John W. Powers
Vice President-Controller
and Principal Accounting
/s/ Steven W. Tasker Officer March 23, 1995
Steven W. Tasker
Dr. Bonnie Guiton Hill Director March 23, 1995
John G. Haehl, Jr. Director March 23, 1995
Dr. Patti McGill Peterson Director March 23, 1995
Stephen B. Schwartz Director March 23, 1995