As filed with the Securities and Exchange Commission on October 9, 1996
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------
NIAGARA MOHAWK POWER CORPORATION
(Exact Name of Registrant as Specified in its Charter)
New York 15-0265555
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
300 Erie Boulevard West, Syracuse, New York 13202
(Address of Principal Executive Offices, including Zip Code)
EMPLOYEE SAVINGS FUND PLAN FOR REPRESENTED EMPLOYEES
OF NIAGARA MOHAWK POWER CORPORATION
EMPLOYEE SAVINGS FUND PLAN FOR NON-REPRESENTED EMPLOYEES
OF NIAGARA MOHAWK POWER CORPORATION
(Full Title of Plans)
JOHN W. POWERS
Senior Vice President and Chief Financial Officer
Niagara Mohawk Power Corporation
300 Erie Boulevard West, Syracuse, New York 13202
(315) 474-1511
(Name, Address and Telephone Number of Agent For Service)
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Maximum Maximum
Amount to Offering Aggregate Amount of
Title of Securities be Price Offering Registration
to be Registered Registered<F1> Per Share<F2> Price Fee
- -------------------------------------------------------------------------------------------
Common Stock, par value
$1 per share 5,000,000 $8.125 $40,625,000 $12,311
===========================================================================================
<FN>
<F1> In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
<F2> Estimated pursuant to Rule 457(c) and (h)(1), and is being utilized solely
for the purpose of calculating the registration fee, based on the average
of the high and low prices of Niagara Mohawk Power Corporation Common
Stock, par value $1 per share, on the New York Stock Exchange Composite
Tape on October 8, 1996.
</FN>
Pursuant to Rule 429 of the Securities Act of 1933, as amended, this
registration statement also relates as of August 30, 1996 to 1,299,850
shares of Common Stock, $1 par value, registered under Registration
Statement 33-54829.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
All information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual
Information
All information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
I-1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Niagara Mohawk Power Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as amended by Form 10-K/A dated June 25, 1996 (which
includes the Annual Reports on Form 11-K for the plan year ended
December 31, 1995 for the Employee Savings Fund Plan for Represented
Employees of Niagara Mohawk Power Corporation and the Employee Savings
Fund Plan for Non-Represented Employees of Niagara Mohawk Power
Corporation (together, the "Plans")).
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996 and June 30, 1996.
3. The Company's Current Report on Form 8-K dated
March 5, 1996.
4. Description of the Company's Common stock
contained in Registration Statement No. 33-51073 on
Form S-3 filed on November 17, 1993 under the
Securities Act, including any amendment or report
filed for the purpose of updating such description.
5. Description of the Company's Common stock contained in the
Company's registration statement filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including any amendment
or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof as of the date of the filing of
such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
II-1
Item 4. Description of Securities
The outstanding shares of common stock, par value $1.00 (the "Common
Stock") of the Company are, and the Common Stock registered hereunder, will be,
fully paid and nonassessable and listed on the New York Stock Exchange. The
Transfer Agent is Chemical Bank, 450 West 33rd Street, New York, New York 10001.
The Company acts as dividend disbursing agent and maintains stockholder records.
The following brief summaries of certain provisions contained in the
Mortgage Trust Indenture dated as of October 1, 1937, as amended, between the
Company and Bankers Trust Company (successor to The Marine Midland Trust Company
of New York), as Trustee (the "Mortgage"), and the Company's certificate of
incorporation (the "Charter") (copies of which are filed as exhibits to the
Registration Statement or incorporated by reference) relating to the Common
Stock do not purport to be complete, use certain capitalized terms (not
otherwise defined herein) defined in the Mortgage and in the Charter and are
qualified in their entirety by express reference to the Mortgage and the
Charter.
Dividend Rights
After payment or setting aside for payment of cumulative dividends on
all outstanding issues of Preferred and Preference Stock, the holders of Common
Stock are entitled to dividends when and as declared by the Board of Directors
out of funds legally available therefor.
Consent of the holders of two-thirds of the votes of the then
outstanding Preferred Stock is required prior to the taking of certain corporate
action by the Company or its subsidiaries, including (1) payments or
distributions 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, and (2) payment of any Common Stock dividend
(which includes purchases or acquisitions of and distributions or dividends on
Common Stock, other than dividends payable on Common Stock), if (a) the Common
Stock dividends during a prescribed 12-month period would exceed 75% of the net
income applicable to the Common Stock (as defined in the Charter) for a related
12-month period and the pro forma stock equity junior to the Preferred Stock (as
defined in the Charter) would be less than 25% of the Company's pro forma total
capitalization (as defined in the Charter), each determined as of the end of
such related 12-month period, or if (b) such Common Stock dividends would exceed
50% of such income and such pro forma stock equity junior to the Preferred Stock
would be less than 20% of the Company's total pro forma capitalization, each
determined as of the end of such related 12-month period. No approval of the
holders of Preference Stock is required prior to the taking of comparable
corporate action.
The Mortgage provides that surplus of the Company shall be reserved and
held unavailable for distribution as dividends on Common Stock to the extent
that, with respect to any fiscal year, the aggregate amount of expenditures for
maintenance and repairs plus the aggregate amount credited to depreciation,
retirements and other like reserves is less than the sum of 2.25% of the
depreciable property of the Company on January 1 of such year. Such provisions
have never to date restricted the Company's surplus.
II-2
Liquidation Rights
Upon any dissolution, liquidation or winding up of the Company, the
holders of the Common Stock are entitled to receive pro forma all of the
Company's assets available for distribution to its stockholders after payment of
the full preferential amounts to which holders of stock (including Preferred and
Preference Stock) having priority over the Common Stock are entitled.
Voting Rights
The holders of the Common Stock are entitled to one vote per share.
Holders of the Company's Common Stock do not have cumulative voting rights with
respect to the election of Directors. Whenever dividends payable on Preferred
Stock are in default in an aggregate amount equivalent to four full quarterly
dividends on all shares of Preferred Stock then outstanding and thereafter until
all dividends thereon are paid or declared and set aside for payment, the
holders of the Preferred Stock are entitled to elect a majority of the Board of
Directors as then constituted. Whenever dividends payable on Preference Stock
are in default in an aggregate amount equivalent to six full quarterly dividends
on all shares of Preference Stock then outstanding and thereafter until all
dividends thereon are paid or declared and set aside for payment, the holders of
the Preference Stock are entitled to elect two members of the Board of Directors
as then constituted. No such dividends are now in default.
The Charter contains a "fair price" provision which (i) requires the
approval of the holders of at least 75% of the combined voting power of the then
outstanding shares of the Voting Stock (all outstanding shares of capital stock
of all classes and series of the Company entitled to vote generally in the
election of Directors of the Company), voting as a single class (including at
least two-thirds of the combined voting power of the outstanding shares of
Voting Stock held by shareholders other than an Interested Shareholder, as
defined in the Charter), for certain business combinations involving the Company
and any Interested Shareholder, unless (x) the business combination is approved
by a majority of Disinterested Directors (as defined in the Charter) or (y)
certain minimum price and procedural criteria are met and (ii) requires the
affirmative vote of at least 80% of the combined voting power of the Voting
Stock, voting as a single class (including at least two-thirds of the combined
voting power of the outstanding shares of Voting Stock held by shareholders
other than an Interested Shareholder), to after, amend or repeal the "fair
price" provision or to adopt any provision inconsistent with the "fair price"
provision.
The Charter also provides for the classification of Directors, with
three-year staggered terms, and a requirement of an affirmative vote of 80% of
the outstanding shares of Voting Stock, voting together as a single class, is
required to alter, amend or repeal the provisions relating to the size and
classification of the Board of Directors and the removal of members from, and
the filling of vacancies on, the Board of Directors.
The Charter further provides that an affirmative vote of 80% of the
outstanding shares of Voting Stock, voting together as a single class, is
required to alter, amend or repeal the provisions eliminating cumulative voting
with respect to the election of Directors by the holders of Common Stock.
II-3
Other Rights
The holders of record of the Common Stock are eligible to participate
in the Company's Dividend Reinvestment and Common Stock Purchase Plan. The
holders of the Common Stock have no preemptive rights.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock being offered hereby has
been passed upon by Paul J. Kaleta, Esq., Vice President-Law and General Counsel
of the Company. Mr. Kaleta owns or has the right to acquire a number of shares
of Common Stock equal to less than 0.01% of the Company's outstanding Common
Stock.
Item 6. Indemnification of Directors and Officers
Sections 721 through 726 of the Business Corporation Law of the State
of New York (the "BCL") provide for indemnification of the Company's officers
and directors under certain conditions and subject to specific limitations. The
BCL permits New York corporations to supplement the statutory indemnification
with additional "non-statutory" indemnification for directors and officers
meeting a specified standard of conduct and to advance to officers and directors
litigation expenses under certain circumstances. As permitted by the BCL,
Article VI of the Company's By-Laws provides for indemnification of, and
advancement of litigation expenses incurred by, directors and officers of the
Company.
The Company has also obtained insurance providing for indemnification
of directors and officers against certain expenses and liabilities. In addition,
pursuant to a 1986 amendment to the BCL, the Company has entered into agreements
with certain of the officers and directors of the Company providing for
indemnification for the liability of officers and directors not covered by the
policy mentioned above. Such additional indemnification does not cover acts
committed in bad faith or acts which were the result of active and deliberate
dishonesty. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
Furthermore, Article XIIA of the Certificate of Incorporation of the
Company limits, with certain exceptions, the personal liability of a director of
the Company to the Company or its shareholders for damages for any breach of
duty in such capacity to the fullest extent permitted by the BCL.
Item 7. Exemption from Registration Claimed
Not applicable.
II-4
Item 8. 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 is preceded by an
asterisk. Previous filings with the Commission are indicated as follows:
F--CNYP Registration Statement No. 2-3414;
CCC--NMPC Registration Statement No. 2-70860;
GGG--NMPC Registration Statement No. 2-82041; and
e--NMPC Annual Report on Form 10-K for year ended December 31, 1994.
Incorporation by
Reference
----------------------
Previous
Exhibit Previous Exhibit
No. Description of Instrument Filing Designation
- -------- -------------------------------------------- ---------- ------------
4(a)(1) Certificate of Consolidation of New
York Power and Light Corporation,
Buffalo Niagara Electric Corporation,
and Central New York Power
Corporation, filed January 5, 1950 in
the office of the New York Secretary
of State .................................... e 3(a)(1)
4(a)(2) Certificate of Amendment of
Certificate of Incorporation of NMPC,
filed January 5, 1950 in the office
of the New York Secretary of State .......... e 3(a)(2)
4(a)(3) 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 ................. e 3(a)(5)
4(a)(4) 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 ............. e 3(a)(11)
4(a)(5) Certificate of Amendment of the 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 ..................... e 3(a)(35)
4(a)(6) 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 ..................... e 3(a)(42)
II-5
4(a)(7) Specimen of Common Stock, $1 par
value (not more than 100,000 shares) ........ GGG 4(a)(4)
4(b) By-laws of NMPC ............................. e 3(b)
4(c)(1) Mortgage Trust Indenture dated as of
October 1, 1937 between NMPC (formerly CNPC)
and Bankers Trust Company (successor to The
Marine Midland Trust Company of New York),
as Trustee .................................. F 1
4(c)(2) Supplemental Indenture dated as of
March 1, 1978, supplemental to
Exhibit 4(c)(1) ............................. CCC 4(b)(42)
*5(a) Opinion and Consent of Paul J.
Kaleta, Esq.
*5(b) Internal Revenue Service
Determination Letter, dated March 24,
1995, with respect to the Employee
Savings Fund Plan for Represented
Employees of Niagara Mohawk Power
Corporation
*5(c) Internal Revenue Service
Determination Letter, dated March 24,
1995, with respect to the Employee
Savings Fund Plan for Non-Represented
Employees of Niagara Mohawk Power
Corporation
The undersigned Registrant hereby
undertakes to submit the Plans, each
as amended, to the Internal Revenue
Service (the "IRS") in a timely
manner and to make all changes
required by the IRS in order to
qualify the Plans under Section 401
of the Internal Revenue Code.
*15 Letter regarding unaudited interim
financial information
*23(a) Consent of Price Waterhouse
*23(b) Consent of Paul J. Kaleta, Esq.
(included in Exhibit 5(a))
*24 Power of Attorney
*99(a) Niagara Mohawk Power Corporation's
Employee Savings Fund Plan for
Represented Employees
*99(b) Niagara Mohawk Power Corporation's
Employee Savings Fund Plan for
Non-Represented Employees
- --------
1 Filed October 15, 1937 after effective date of Registration
Statement No. 2-3414.
II-6
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with the Commission by the
Company pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions referred to in Item 6 of this
Registration Statement, or otherwise, the Company has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
II-7
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-8
SIGNATURES
The Registrant. Pursuant to the requirements of Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Syracuse, State of New York, on the 9th day of
October, 1996.
NIAGARA MOHAWK POWER CORPORATION
By: /s/ Arthur W. Roos
Arthur W. Roos
Vice President-Treasurer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title
- --------------------------------- -----------------------
* Director
- ---------------------------
William F. Allyn
* Director, President
- --------------------------- and Chief Operating
Albert J. Budney, Jr. Officer
* Director
- ---------------------------
Lawrence Burkhardt, III
* Director
- ---------------------------
Douglas M. Costle
* Director
- ---------------------------
Edmund M. Davis
* Chairman of the
- --------------------------- Board of Directors
William E. Davis and Chief Executive
Officer
* Director
- ---------------------------
William J. Donlon
* Director
- ---------------------------
Anthony H. Gioia
* Director
- ---------------------------
Bonnie Guiton Hill
II-9
* Director
- ---------------------------
H. Eugene Lockhart
Director
- ---------------------------
Henry A. Panasci, Jr.
Director
- ---------------------------
Patti McGill Peterson
* Director
- ---------------------------
Donald B. Riefler
* Director
- ---------------------------
Stephen B. Schwartz
* Director
- ---------------------------
John G. Wick
* Senior Vice President and
- --------------------------- Principal Financial Officer
John W. Powers
* Vice President-Controller and
- --------------------------- Principal Accounting Officer
Steven W. Tasker
*By: /s/ Arthur W. Roos
-------------------------
(Arthur W. Roos, Attorney-in-Fact)
Date: October 9, 1996
II-10
The Plans. Pursuant to the requirements of the Securities Act, the
administrator of the Plans has duly caused this Registration Statement to be
signed on their behalf by the undersigned, thereunto duly authorized, in the
City of Syracuse, State of New York, on the 9th of October, 1996.
EMPLOYEE SAVINGS FUND PLAN
FOR REPRESENTED EMPLOYEES OF NIAGARA
MOHAWK POWER CORPORATION
EMPLOYEE SAVINGS FUND PLAN
FOR NON-REPRESENTED EMPLOYEES
OF NIAGARA MOHAWK POWER CORPORATION
By: /s/ David J. Arrington
------------------------------
(David J. Arrington, Chairman,
Employee Savings Fund Plan Committee)
II-11
INDEX TO EXHIBITS
Exhibit
No. Exhibit
5(a) Opinion and Consent of Paul J. Kaleta, Esq
5(b) Internal Revenue Service Determination Letter,
dated March 24, 1995, with respect to the
Employee Savings Fund Plan for Represented
Employees of Niagara Mohawk Power Corporation
5(c) Internal Revenue Service Determination Letter, dated
March 24, 1995, with respect to the Employee Savings
Fund Plan for Non-Represented Employees of Niagara
Mohawk Power Corporation
15 Letter regarding unaudited interim financial
information
23(a) Consent of Price Waterhouse
23(b) Consent of Paul J. Kaleta, Esq.
(included in Exhibit 5(a))
24 Power of Attorney
99(a) Niagara Mohawk Power Corporation's
Employee Savings Fund Plan for
Represented Employees
99(b) Niagara Mohawk Power Corporation's
Employee Savings Fund Plan for
Non-Represented Employees