Exhibit 4.17
FORM OF
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
KEYSPAN CORPORATION
Under Section 805 of the Business Corporation Law
of the State of New York
KeySpan Corporation, a corporation organized and existing under the
laws of the State of New York (the "Corporation"), does hereby certify as
follows:
FIRST: The present name of the Corporation is KeySpan Corporation. The
Corporation was formed under the name "BL Holding Corp."
SECOND: The Certificate of Incorporation of the Corporation was filed
with the New York Department of State on April 16, 1998. Certificates of
Amendment of the Certificate of Incorporation were filed with the New York
Department of State on May 26, 1998 and June 1, 1998, April 7, 1999 and May 20,
1999.
THIRD: The amendment of the Certificate of Incorporation of the
Corporation effected by this Certificate of Amendment is as follows:
To add provisions stating the number, designation, relative
rights, preferences, and limitations of the shares of the
Series __ Preferred Stock, as fixed by the Board of Directors
of the Corporation.
FOURTH: To accomplish the foregoing amendment, Article IV of the
Certificate of Incorporation of the Corporation, relating to the capital
stock of the Corporation is hereby amended as follows:
A Part __ shall be inserted at the end of Section 5 of Article
IV, and such Part __ shall read in its entirety as follows:
PART __ SERIES __ PREFERRED STOCK
1. Designations and Number of Shares.
----------------------------------
__ shares of the Series __ Preferred Stock of the Corporation are
hereby constituted as a series of preferred stock, $__ par value per share,
stated value $__ per share (the "Series __ Stated Value"), and designated as
"Series __ Preferred Stock" (hereinafter called the "Series __ Preferred
Stock").
2. Rank.
-----
The Series __ Preferred Stock shall, with respect to dividend
distributions and distributions upon the liquidation, winding up or dissolution
of the Corporation, rank senior to all classes of common stock of the
Corporation, and to each other class or series of capital stock of the
Corporation ranking junior to the Series __ Preferred Stock, whether now or
hereafter created (collectively referred to with the common stock of the
Corporation as "Junior Securities"). Subject to Subsection 9 of this Part __,
the Series __ Preferred Stock shall, with respect to dividend distributions and
distributions upon the liquidation, winding up or dissolution of the
Corporation, rank on a parity with the Series B Preferred Stock and the Series C
Preferred Stock and any other class or series of capital stock of the
Corporation hereafter created which expressly provides that it ranks on a parity
with the Series __ Preferred Stock as to dividend distributions or distributions
upon the liquidation, winding up or dissolution of the Corporation ("Parity
Securities"). Subject to Subsection 9 of this Part __, the Series __ Preferred
Stock shall, with respect to dividend distributions and distributions upon the
liquidation, winding up or dissolution of the Corporation, rank junior to each
class or series of capital stock of the Corporation hereafter created which
expressly provides that it ranks senior to the Series __ Preferred Stock as to
dividend distributions or distributions upon the liquidation, winding up or
dissolution of the Corporation ("Senior Securities").
3. Dividends.
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(a) Beginning on the date of issuance of shares of the Series __ Preferred
Stock, the Holders of the outstanding shares of Series __ Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors, out
of funds legally available therefor, cash dividends on each share of Series __
Preferred Stock, at a per annum rate equal to __%, payable quarterly. All
dividends shall be cumulative, whether or not the Corporation has earnings, and
whether or not such dividends are declared, on a daily basis from the Series __
Preferred Stock Issue Date and shall be payable quarterly for each Quarterly
Dividend Period, payable ratably per share of Series __ Preferred Stock
outstanding, in arrears on each Designated Dividend Payment Date and commencing
on the first Designated Dividend Payment Date. Each dividend shall be payable to
the Holders of record of Series __ Preferred Stock of record as they appear on
the stock books of the Corporation on such record dates, not less than ten (10)
nor more than forty-five (45) days preceding the related Designated Dividend
Payment Date, as shall be fixed by the Board of Directors. Holders of shares of
Series __ Preferred Stock shall not be entitled to any dividend in excess of
full cumulative dividends, as herein provided, on the Series __ Preferred Stock.
No interest shall be payable in respect of any dividends on the Series __
Preferred Stock which may be in arrears.
(b) All dividends paid with respect to shares of Series __ Preferred Stock
pursuant to paragraph 3(a) of this Part __ shall be paid ratably on Series __
Preferred Stock to the Holders thereof entitled thereto.
(c) Dividends on account of arrears for any past Dividend Period may be
declared and paid at any time, without reference to any regular Dividend Payment
Date, to Holders of Series __ Preferred Stock of record on such date, not less
than ten (10) days nor more than forty-five (45) days prior to the payment
thereof, as may be fixed by the Board of Directors.
(d) Except as provided in the next sentence, no dividends shall be declared
by the Board of Directors or paid or funds set apart for payment of dividends by
the Corporation on any Parity Securities for any period unless all cumulative
dividends shall have been or contemporaneously are declared and paid in full, or
declared and a sum in cash set apart sufficient for such payment, on Series __
Preferred Stock for all Dividend Periods terminating on or prior to the date of
payment of such full dividends on such Parity Securities. If dividends are not
declared or paid in full, as stated above, upon, or funds are not set apart for
payment of dividends on, the shares of Series __ Preferred Stock and any Parity
Securities, dividends may nonetheless be declared or paid upon shares of Series
__ Preferred Stock and any Parity Securities, but only so long as such dividends
are declared ratably on Series __ Preferred Stock so that the amount of
dividends declared per share on the shares of Series __ Preferred Stock and such
Parity Securities shall in all cases bear to each other the same ratio that
accrued and unpaid dividends per share on the shares of Series __ Preferred
Stock and such Parity Securities bear to each other.
(e) So long as any shares of Series __ Preferred Stock are outstanding, the
Corporation shall not (i) declare, pay or set apart for payment any dividend on
any Junior Securities or make, and shall not permit any of its subsidiaries to
make, any payment on account of, or set apart for payment money for a sinking or
other similar fund for, the purchase, redemption or other retirement of, any
Junior Securities or any warrants, rights, calls or options exercisable for or
convertible into any Junior Securities or (ii) make any distribution in respect
thereof, either directly or indirectly, and whether in cash, obligations or
shares of the Corporation or other property (other than distributions or
dividends in Junior Securities to the holders of Junior Securities), unless in
any such case referred to in clause (i) or (ii) of this paragraph 3(e) all
cumulative dividends determined in accordance herewith for all Dividend Periods
terminating on or prior to the date of such payment, distribution, purchase or
redemption have been paid in full in cash on the Series __ Preferred Stock.
(f) Dividends payable on shares of Series __ Preferred Stock for any full
Quarterly Dividend Period shall be in the amount of $__ per share. Dividends
payable on shares of Series __ Preferred Stock for any period less than a full
Quarterly Dividend Period, or for the Initial Dividend Period, shall be computed
on the basis of a 360-day year of twelve 30-day months and the actual number of
days elapsed in the period for which such dividends are payable. If any Series
__ Dividend Payment Date occurs on a day that is not a Business Day, any accrued
dividends otherwise payable on such Series __ Dividend Payment Date shall be
paid on the next succeeding Business Day.
(g) If, prior to 18 months after the date of the original issuance of the
Series __ Preferred Stock, one or more amendments to the Internal Revenue Code
of 1986, as amended (the "Code"), are enacted that reduce the percentage of the
dividends-received deduction (currently 70%) as specified in section 243(a)(1)
of the Code or any successor provision (the "Dividends-Received Percentage"),
the amount of each dividend payable (if declared) per share of Series ___
Preferred Stock for dividend payments made on or after the effective date of
such change in the Code will be adjusted by multiplying the amount of the
dividend payable described above (before adjustment) by the following fraction
(the "DRD Formula"), and rounding the result to the nearest cent (with one-half
cent rounded up):
[1 - .35(1.70)
-------------
1 - .35(1-DRP)]
For the purposes of the DRD Formula. "DRP" means the Dividends-Received
Percentage (expressed as a decimal) applicable to the dividend in question;
provided, however, that if the Dividends-Received Percentage applicable to the
dividend in question shall be less than 50%, then the DRP shall equal [.50].
Notwithstanding the foregoing provisions, if, with respect to any such
amendment, the Corporation receives either an unqualified opinion of nationally
recognized independent tax counsel selected by the Corporation or a private
letter ruling or similar form of authorization from the Internal Revenue Service
("IRS") to the effect that such amendment does not apply to a dividend payable
on the Series __ Preferred Stock, then such amendment will not result in the
adjustment provided for pursuant to the DRD Formula with respect to such
dividend. Such opinion shall be based upon the legislation amending or
establishing the DRP or upon a published pronouncement of the IRS addressing
such legislation.
If any such amendment to the Code is enacted after the dividend payable
on a Designated Dividend Payment Date has been declared, the amount of the
dividend payable on such Designated Dividend Payment Date will not be increased;
instead, additional dividends (the "Post Declaration Date Dividends") equal to
the excess, if any, of (x) the product of the dividend paid by the Corporation
on such Designated Dividend Payment Date and the DRD Formula (where the DRP used
in the DRD Formula would be equal to the greater of the Dividend-Received
Percentage applicable to the dividend in question and [.50]) over (y) the
dividend paid by the Corporation on such Dividend Payment Date, will be payable
(if declared) on the next succeeding Designated Dividend Payment Date to holders
of Series __ Preferred Stock on the Designated Dividend Payment Record Date
applicable to such Designated Dividend Payment Date or, if the Series __
Preferred Stock is called for redemption prior to such Designated Dividend
Payment Record Date, to holders of Series __ Preferred Stock on the applicable
redemption date, as the case may be, in addition to any other amounts payable on
such date. Notwithstanding the foregoing provisions, if, with respect to any
such amendment, the Corporation receives either an unqualified opinion of
nationally recognized independent tax counsel selected by the Corporation or a
private letter ruling or similar form of authorization from the IRS to the
effect that such amendment does not apply a dividend so payable on the Series __
Preferred Stock, then such amendment will not result in the payment of Post
Declaration Date Dividends. The opinion referenced in the previous sentence
shall be based upon the legislation amending or establishing the DRP or upon a
published pronouncement of the IRS addressing such legislation.
In any such amendment to the Code is enacted and the reduction in the
Dividends-Received Percentage retroactively applies to a Designated Dividend
Payment Date as to which the Corporation previously paid dividends on the Series
__ Preferred Stock (each, an "Affected Dividend Payment Date"), the Corporation
will pay (if declared) additional dividends (the "Retroactive Dividends") on the
next succeeding Designated Dividend Payment Date to holders of Series __
Preferred Stock on the Dividend Payment Record Date applicable to such
Designated Dividend Payment Date (or, if such amendment is enacted after the
dividend payable on such Designated Dividend Payment Date has been declared, to
holders of Series __ Preferred Stock on the Dividend Payment Record Date
following the date of enactment) or, if the Series Preferred Stock is called for
redemption prior to such Dividend Payment Record Date, to holders of Series __
Preferred Stock on the applicable redemption date, as the case may be, in an
amount equal to the excess of (x) the product of the dividend paid by the
Corporation on each Affected Dividend Payment Date and the DRD Formula (where
the DRP used in the DRD Formula would be equal to the greater of the
Dividends-Received Percentage and [.50] applied to each Affected Dividend
Payment Date) over (y) the sum of the dividend paid by the Corporation on each
Affected Dividend Payment Date. The Corporation will only make one payment of
Retroactive Dividends for any such amendment. Notwithstanding the foregoing
provisions, if, with respect to any such amendment, the Corporation receives
either an unqualified opinion of nationally recognized independent tax counsel
selected by the Corporation or a private letter ruling or similar form of
authorization from the IRS to the effect that such amendment does not apply to a
dividend payable on an Affected Dividend Payment Date for the Series __
Preferred Stock, then such amendment will not result in the payment of
Retroactive Dividends with respect to such Affected Dividend Payment Date. The
opinion referenced in the previous sentence shall be based upon the legislation
amending or establishing the DRP or upon a published pronouncement of the IRS
addressing such legislation.
Notwithstanding the foregoing, no adjustment in the dividends payable
by the Corporation shall be made, and no Post Declaration Date Dividends or
Retroactive Dividends shall be payable by the Corporation, in respect of the
enactment of any amendment to the Code 18 months or more after the date of
original issuance of the Series __ Preferred Stock that reduces the
Dividends-Received Percentage.
In the event that the amount of dividends payable per share of the
Series __ Preferred Stock is adjusted pursuant to the DRD Formula and/or Post
Declaration Date Dividends or Retroactive Dividends are to be paid, the
Corporation will give notice of each such adjustment and, if applicable, any
Post Declaration Date Dividends and Retroactive Dividends to the holders of
Series __ Preferred Stock.
4. Liquidation Preference.
-----------------------
(a) Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation, the Holders of shares of Series __
Preferred Stock then outstanding shall be entitled to be paid, out of the assets
of the Corporation available for distribution to its shareholders, $__ per share
of Series __ Preferred Stock, plus an amount in cash equal to accrued and unpaid
dividends thereon to the date of final distribution, before any payment shall be
made or any assets distributed to the holders of any Junior Securities,
including, without limitation, the Common Stock of the Corporation. After such
amount is paid in full, no further distributions or payments shall be made in
respect of Series __ Preferred Stock, the Series __ Preferred Stock shall no
longer be deemed to be outstanding or be entitled to any other powers,
preferences, rights or privileges, including voting rights, and, upon the
Corporation's written request, the Series __ Preferred Stock shall be
surrendered for cancellation to the Corporation.
(b) If the assets of the Corporation are not sufficient to pay in full the
liquidation payments payable to the Holders of outstanding shares of Series __
Preferred Stock and the holders of all outstanding shares of Parity Securities,
then the holders of all such shares shall share equally and ratably in such
distribution of assets of the Corporation in accordance with the amounts which
would be payable on such shares if the amount to which the Holders of
outstanding shares of Series __ Preferred Stock and the holders of outstanding
shares of all Parity Securities are entitled were paid in full.
(c) Written notice of any liquidation, dissolution or winding up of the
affairs of the Corporation, stating the payment date or dates when and the place
or places where the amounts distributable in such circumstances shall be
payable, shall be given by first class mail, postage prepaid, not less than
thirty (30) days prior to any payment date stated therein, to the Holders of
Series __ Preferred Stock at their respective addresses as the same shall appear
on the stock books of the Corporation.
(d) For the purposes of this Subsection 4 (and subject to Subsection 9 of
this Part __), neither the sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or substantially all
of the property or assets of the Corporation nor the consolidation or merger of
the Corporation with or into one or more corporations or other entities shall be
deemed to be a liquidation, dissolution or winding up of the affairs of the
Corporation.
5. Optional Redemption.
--------------------
(a) The shares of Series __ Preferred Stock shall not be redeemable or
otherwise purchased by the Corporation prior to the [fifth] anniversary of the
Series __ Preferred Stock Issue Date. On and after the fifth anniversary of the
Series __ Preferred Stock Issue Date, the Corporation may, at its option, redeem
at any time or from time to time, in whole or in part, in the manner provided in
this Subsection 5, any or all of the shares of the Series __ Preferred Stock,
[at a redemption price equal to $__ per share plus an amount in cash equal to
all accrued and unpaid dividends thereon to the date of redemption plus the
Make-Whole Premium.] [at the redemption prices set forth below if redeemed
during the twelve-month period beginning on the _______ of the years indicated
below, plus an amount in cash equal to all accrued and unpaid dividends thereon
to the date of redemption:
Year Redemption Price
20__..............................$
20__..............................$
20__..............................$
20__..............................$
(b) In the event of a redemption of only a portion of the then outstanding
shares of the Series __ Preferred Stock, the Corporation shall effect such
redemption ratably according to the number of shares of Series __ Preferred
Stock held by each Holder.
(c) Not less than twenty (20) days nor more than sixty (60) days prior to
the date fixed for any redemption of the Series __ Preferred Stock, written
notice of redemption (the "Redemption Notice") shall be given by first-class
mail, postage prepaid, to each Holder, at such Holder's address as the same
appears on the stock books of the Corporation; provided that neither the failure
to give such notice nor any deficiency therein shall affect the validity of the
procedure for the redemption of any shares of Series __ Preferred Stock to be
redeemed except as to the Holder or Holders to whom the Corporation has failed
to give said notice or except as to the Holder or Holders whose notice was
defective. The Redemption Notice shall state: (i) the redemption price; (ii)
whether all or less than all the outstanding shares of the Series __ Preferred
Stock are to be redeemed and the total number of shares of the Series __
Preferred Stock being redeemed; (iii) the number of shares of Series __
Preferred Stock held by the Holder being redeemed; (iv) the date fixed for
redemption; (v) that the Holder is to surrender to the Corporation, at the place
or places where certificates for shares of Series __ Preferred Stock are to be
surrendered for redemption, in the manner and at the place designated, his
certificate or certificates representing the shares of Series __ Preferred Stock
to be redeemed; and (vi) that dividends on the shares of the Series __ Preferred
Stock to be redeemed shall cease to accrue on the date fixed for redemption
unless the Corporation defaults in the payment of the redemption price. Such
Redemption Notice shall also include a calculation of the applicable estimated
Make- Whole Premiums due in connection with such redemption (calculated as if
the date of such notice were the date of the redemption), setting forth the
details of such computation. Two Business Days prior to such redemption, the
Corporation shall deliver to each Holder of Series __ Preferred Stock a
certificate of a senior financial officer of the Corporation specifying the
calculation of such Make-Whole Premiums as of the specified redemption date.
(d) Each Holder of shares of Series __ Preferred Stock called for
redemption shall surrender to the Corporation the certificate or certificates
representing his shares of Series __ Preferred Stock to be redeemed at the place
designated in the Redemption Notice, and upon such surrender the full redemption
price for such shares shall be payable in cash to such Holder, and each
surrendered certificate shall be canceled and retired. In the event that less
than all of the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the Holder thereof.
(e) In connection with any redemption pursuant to this Subsection 5 or
Subsection 6 of this Part __ below, unless the Corporation defaults in the
payment in full of the applicable redemption price, dividends on the shares of
Series __ Preferred Stock called for redemption shall cease to accrue on the
date fixed for redemption, and the Holders of such shares shall cease to have
any further rights with respect thereto on the date fixed for redemption, other
than the right to receive the redemption price, without interest.
[6. Mandatory Redemption.
---------------------
On the _____ anniversary of the Series __ Preferred Stock Issue Date
(the "Mandatory Redemption Date," all of the outstanding shares of Series __
Preferred Stock shall be redeemed, at a redemption price equal to $ __ per share
plus an amount in cash equal to all accrued and unpaid dividends thereon to the
date of redemption.]
7. Voting Rights.
--------------
(a) The Holders of shares of Series __ Preferred Stock shall not be
entitled or permitted to vote on any matter required or permitted to be voted
upon by the shareholders of the Corporation, except as otherwise required by law
or as set forth below in this Subsection 7 or in Subsection 9 below.
(b) The Series __ Preferred Stock, except as provided herein or as
otherwise from time to time required by law, shall have no voting rights.
Whenever, at any time or times, dividends payable on shares of Series __
Preferred Stock or on any Parity Securities shall be in arrears for an aggregate
number of days equal to six calendar quarters or more, whether or not
consecutive, the authorized number of directors of the Corporation shall
automatically be increased by two and the holders of the Series __ Preferred
Stock shall have the right, with holders of shares of any one or more other
classes or series of Parity Securities outstanding at the time upon which like
voting rights have been conferred and are exercisable and the terms of which
specify that such Parity Securities shall vote with the Series __ Preferred
Stock in such circumstances ("Voting Parity Stock"), voting together as a class,
to elect two directors (hereinafter the "Preferred Directors" and each a
"Preferred Director") to fill such newly created directorships at the
Corporation's next annual meeting of stockholders and at each subsequent annual
meeting of stockholders until such arrearages have been paid or set aside for
payment, at which time such right shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned. Upon any termination of the
right of the holders of shares of Series __ Preferred Stock and Voting Parity
Stock as a class to vote for directors as provided above, the term of office of
all Preferred Directors then in office shall terminate immediately and the
authorized number of directors shall be reduced by the number of Preferred
Directors elected pursuant hereto. Any Preferred Director may be removed at any
time, with or without cause. Any vacancy created thereby may be filled only by
the affirmative vote of the holders of shares of Series __ Preferred Stock
voting separately as a class (together with the holders of shares of Voting
Parity Stock). If the office of any Preferred Director becomes vacant for any
reason other than removal from office as aforesaid, the remaining Preferred
Director may choose a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred. At elections for such directors, each
holder of shares of Series __ Preferred Stock shall be entitled to ten votes for
each share held (the holders of shares of any other class or series of Voting
Parity Stock being entitled to such number of votes, if any, for each share of
such stock held as may be granted to them).
(c) In any case in which the Holders of shares of Series __ Preferred Stock
shall be entitled to vote pursuant to this Subsection 7 or pursuant to
applicable law, each Holder of shares of Series __ Preferred Stock shall be
entitled to [one vote] for each share of Series __ Preferred Stock held.
8. Conversion or Exchange.
-----------------------
The Holders of shares of Series __ Preferred Stock shall not have any
rights or obligations to convert such shares into or exchange such shares for
shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation or any other securities of the
Corporation.
9. Restrictions.
-------------
So long as any shares Series __ Preferred Stock are outstanding, the
Corporation shall not without authorization (given in person or by proxy, in
writing or at a meeting duly called for that purpose in accordance with Section
605 of the Business Corporation Law of the State of New York or as otherwise
permitted by law) by at least:
(a) two-thirds of the votes entitled to be cast by the Holders of the total
number of shares of Series __ Preferred Stock then outstanding:
(i) amend, alter, change or repeal any of the express terms of the Series
__ Preferred Stock then outstanding in any manner that would materially
affect the Holders of such shares;
(ii) create or authorize any class of stock having a preference superior to
the preferences of Series __ Preferred Stock as to assets or dividends,
or create or authorize any security convertible into shares of stock of
any such kind; or
(b) a majority of the votes entitled to be cast by the Holders of the total
number of shares of Series __ Preferred Stock then outstanding increase the
number of Shares of Series __ Preferred Stock or create or authorize any class
of Parity Securities; provided that the Corporation may increase the authorized
number of shares of Series __ Preferred Stock or create additional series of
Parity Securities without the authorization of a majority of the Holders if such
action was authorized by the shareholders of the Corporation prior to the
creation of the Series __ Preferred Stock.
10. Definitions.
------------
The following terms shall have the meanings set forth below for
purposes of this Part __:
"Board of Directors" means the Board of Directors of the Corporation.
"Business Day" means any day other than Saturday, Sunday or a day on
which banking institutions in the City of New York are authorized by law,
regulation or executive order to remain closed.
"Certificate of Incorporation" means the Corporation's Certificate of
Incorporation, as amended from time to time.
"Corporation" means this corporation.
"Designated Dividend Payment Date" means each __, __, __ and __
following the Series __ Preferred Stock Issue Date.
["Discounted Value" means, with respect to any shares of Series __
Preferred Stock, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such shares of Series __ Preferred Stock from their
respective scheduled due dates to the Optional Redemption Date, in accordance
with accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which dividends with respect to the Series __
Preferred Stock are payable) equal to the Reinvestment Yield with respect to the
Series __ Stated Value.]
"Dividend Payment Record Date" means each ___________, _____________,
___________ and ____________ preceding the immediately following Designated
Dividend Payment Date.
"Dividend Period" means the Initial Dividend Period and, thereafter,
each Quarterly Dividend Period.
"Holder" means a Person in whose name a share of Series __ Preferred
Stock is registered.
"Initial Dividend Period" means the dividend period commencing on the
Series __ Preferred Stock Issue Date and ending on the day before the first
Series __ Dividend Payment Date to occur thereafter.
["Make-Whole Premium" means, with respect to any shares of Series __
Preferred Stock, an amount equal to the excess, if any, of (a) the Discounted
Value of the Remaining Scheduled Payments with respect to the Series __
Preferred Stock over (b) the Series __ Stated Value of such shares of Series __
Preferred Stock; provided that the Make-Whole Premium may in no event be less
than zero.]
"Optional Redemption Date" means, with respect to the any share of
Series __ Preferred Stock, the date on which the Corporation redeems such share
in accordance with paragraph 5(a) of this Part _.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Quarterly Dividend Period" shall mean each of the quarterly periods
ending on the last day of __, __, __ and __ of each year.
"Redemption Date" means, with respect to any shares of Series __
Preferred Stock, the date on which such shares of Series __ Preferred Stock are
redeemed by the Corporation.
["Reinvestment Yield" means, with respect to the Series __ Stated Value
of any shares of Series __ Preferred Stock, 0.__% over the yield to maturity
implied by (a) the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Optional Redemption Date with respect to the
Series __ Stated Value, on the display designated as ["Page 678" on the Dow
Jones Markets Service (or such other display as may replace Page 678 on Dow
Jones Markets Service)] for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Life of the Series __ Stated Value as of such
Optional Redemption Date, or (b) if such yields are not reported as of such time
or the yields reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of the second Business Day preceding the
Optional Redemption Date with respect to the Series __ Applicable Stated Value,
in Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Life of the Series __ Stated Value as of such
Optional Redemption Date. Such implied yield will be determined, if necessary,
by (i) converting U.S. Treasury bill quotations to bond-equivalent yields in
accordance with accepted financial practice and (ii) interpolating linearly
between (A) the actively traded U.S. Treasury security with the duration closest
to and greater than the Remaining Life and (B) the actively traded U.S. Treasury
security with the duration closest to and less than the Remaining Life.]
["Remaining Life" means, with respect to the Series __ Stated Value,
the number of years (calculated to the nearest one-twelfth year) that will
elapse between the Optional Redemption Date with respect to the Series __ Stated
Value and the Mandatory Redemption Date.]
["Remaining Scheduled Payments" means the payment of the Series __
Stated Value of shares of Series __ Preferred Stock and dividends thereon that
would be due after the Optional Redemption Date with respect to the Series __
Stated Value if no payment of the Series __ Stated Value were made prior to the
Mandatory Redemption Date; provided that if such Optional Redemption Date is not
a date on which dividends are due to be made under the terms hereof, then the
amount of the next succeeding dividend payment will be reduced by the amount of
accrued dividends to such Optional Redemption Date and required to be paid on
such Optional Redemption Date.]
"Series __ Preferred Stock Issue Date" means the date on which the
Series __ Preferred Stock is originally issued by the Corporation.
FIFTH: The foregoing amendments to the Certificate of Incorporation were
duly adopted by [a Unanimous Written Consent of the Board of Directors of the
Corporation] [a majority of the Board of Directors of the Corporation] [the
_____ Committee of the Board of Directors of the Corporation pursuant to
authority granted to that Committee by the Board of Directors] pursuant to
authority vested in it by the Certificate of Incorporation, the by-laws of the
Corporation and pursuant to Section 502 of the Business Corporation Law of the
State of New York, at a meeting duly held on the ______ day of ____________,
20__.
IN WITNESS WHEREOF, the undersigned officers of the Corporation have
signed this Certificate of Amendment and each affirms that the statements made
herein are true under the penalties of perjury.
Dated: ___________ __, 200_
KEYSPAN CORPORATION
By:
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Name:
Title:
By:
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Name:
Title: