EXHIBIT 99-1
RESTATED CERTIFICATE OF INCORPORATION
OF
NIAGARA MOHAWK HOLDINGS, INC.
Under Section 807 of the Business Corporation Law
The undersigned, being Chairman and Chief Executive Officer and
Secretary of Niagara Mohawk Holdings, Inc., a New York corporation, hereby
certify that:
FIRST. The name of the corporation is Niagara Mohawk Holdings, Inc.
SECOND. The Certificate of Incorporation of the corporation was filed
by the Department of State on April 2,1998.
THIRD. The Certificate of Incorporation is amended or changed to
effect one or more amendments or changes authorized by the Business Corporation
Law, namely a cross reference in Article Sixth from Article 10 to Article 11 and
to provide that the By-laws shall be amended by a vote of the majority of the
entire Board of Directors rather than a majority of directors present. The text
of the Certificate of Incorporation is hereby restated as so amended or changed
to read as follows:
FIRST. The name of the corporation is Niagara Mohawk Holdings, Inc.
(the "Corporation").
SECOND. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Business
Corporation Law of the state of New York, provided that any act or activity
requiring the consent or approval of any state official, department, board,
agency or other body shall not be engaged in without such consent or approval
first being obtained.
THIRD. The office of the Corporation within the state of New York is
to be located in the city of Syracuse, county of Onondaga.
FOURTH. The aggregate number of shares which the Corporation shall
have authority to issue is (a) three hundred million (300,000,000) shares of
common shares with a par value of $0.01 per share (the "Common Stock") and fifty
million (50,000,000) shares of Preferred Stock, with a par value of $0.01 per
share (the "Preferred Stock").
The designations, relative rights, preferences and limitations of the
shares of such classes of stock are as follows:
A. The Preferred Stock may be issued from time-to-time by the Board
of Directors as shares of one or more series of Preferred Stock, and the Board
of Directors is expressly authorized, prior to issuance, in the resolution or
resolutions providing for the issue of shares of each particular series, to
establish and designate each particular series and to fix the rights,
preferences and limitations of each particular series, and the relative rights,
preferences and limitations between series, as follows:
(i) The distinctive serial designation of such series which shall
distinguish it from other series;
(ii) The number of shares included in such series, which number
(except where otherwise provided by the Board of Directors in creating such
series) may be increased (but not above the total number of authorized shares of
Preferred Stock) or decreased (but not below the number of the outstanding
shares of such series) from time-to-time by the Board of Directors; provided
that if the number of shares is decreased, the shares constituting such decrease
shall be restored to the status of authorized but unissued shares of Preferred
Stock;
(iii) The annual or other dividend rate or rates (or method of
determining such rate or rates) for shares of such series and the date or dates
upon which such dividends shall be payable;
(iv) Whether dividends on the shares of such series shall be
cumulative, and, in the case of shares of any series having cumulative dividend
rights, the date or dates (or method for determining such date or dates) from
which dividends on the shares of such series shall be cumulative;
(v) The amount or amounts per share which shall be paid out of the
assets of the Corporation to the holders of the shares of such series upon
voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation;
(vi) The price or prices (cash or otherwise) at which, the period or
periods within which and the terms and conditions upon which, if any, the shares
of such series may be purchased, redeemed or acquired (by exchange or
otherwise), in whole or in part;
(vii) Provision or provisions, if any, for the Corporation to
purchase, redeem or acquire (by exchange or otherwise), in whole or in part,
shares of such series pursuant to a sinking or other similar fund, and the price
or prices (cash or otherwise) at which, the period or periods within which and
the terms and conditions upon which the shares of such series shall be so
purchased, redeemed or acquired, in whole or in part, pursuant to such provision
or provisions;
(viii) The period or periods within which and the terms and
conditions, including the price or prices or the rate or rates of conversion or
exchange and the terms and conditions of any adjustments thereof, upon which, if
any, the shares of such series shall be convertible or exchangeable, in whole or
in part, at the option of the holder, the Corporation or another person into
shares of any class of stock or into shares of any series of any class or cash,
other property, indebtedness or other securities of the Corporation or another
corporation;
(ix) The voting rights, if any, of the shares of such series in
addition to those required by law, including the number of votes per share
(which may be fractional or more or less than one); and
(x) Any other relative rights, preferences or limitations of the
shares of such series not inconsistent with applicable law.
B. Except as may from time-to-time be required by law and except as
otherwise may be provided by the Board of Directors in accordance with paragraph
A of this Article 4 in respect of any particular series of Preferred Stock, all
voting rights of the Corporation shall be vested exclusively in the holders of
the Common Stock who shall be entitled to one vote per share on all matters.
FIFTH. The Secretary of State of the state of New York is designated
as agent of the Corporation upon whom process in any action or proceeding
against it may be served. The address to which the Secretary of State shall
mail a copy of any process against the Corporation served upon him is 300 Erie
Boulevard West, Syracuse, New York 13202, Attn: Corporate Secretary.
SIXTH. Subject to the voting provisions of Article 11, By-laws of the
Corporation may be adopted, amended or repealed by the Board of Directors of the
Corporation by the vote of a majority of the entire Board of Directors at a
meeting of the board at which a quorum is present.
SEVENTH. No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any shares of the corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe for or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time be issued, sold or
offered for sale by the Corporation.
EIGHTH. Subject to the rights, if any, of holders of any class or
series of Preferred Stock, now or hereafter authorized, special meetings of
shareholders may be called only by the Chairman of the Board or by the Board of
Directors pursuant to resolution adopted by a majority of the total number of
directors which the Corporation would have if there were no vacancies.
NINTH. The following provisions shall relate to the Board of
Directors of the Corporation:
A. The size of the Board of Directors shall be fixed by or pursuant
to the By-laws. The Board of Directors shall be divided into three classes
designated Class I, Class II and Class III. Such classes shall be as nearly
equal in number as the then total number of directors constituting the entire
Board permits. At the first annual meeting of shareholders, or any special
meeting in lieu thereof, Class I, Class II and Class III directors shall be
elected for terms expiring at the next succeeding annual meeting, the second
succeeding annual meeting and the third succeeding annual meeting, respectively,
and until their respective successors are elected and qualified. At each annual
meeting of shareholders after such first annual (or special) meeting of
shareholders, the directors chosen to succeed those in the class whose terms
then expire shall be elected by shareholders for terms expiring at the third
succeeding annual meeting after election, or for such lesser term for which one
or more may be nominated in a particular case in order to assure that the number
of directors in each class shall be appropriately constituted and until their
respective successors are elected and qualified. Newly created directorships or
any decrease in directorships resulting from increases or decreases in the
number of directors shall be so apportioned among the classes of directors as to
make all the classes as nearly equal in number as possible. Vacancies on the
Board of Directors at any time for any reason except the removal of directors
without cause may be filled by a majority of the directors then in office,
although less than a quorum. If the number of directors is increased by the
Board of Directors and any newly created directorships are filled by the Board,
there shall, to the extent required by New York law, be no classification of the
additional directors until the next annual meeting of shareholders.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock, now or hereafter authorized, shall have
the right, voting separately or by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by any
provisions of the Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into one or more classes pursuant to
this Article 9A unless expressly provided by such provisions.
B. Directors may be removed for cause by a vote of shareholders
entitled to vote thereon. Directors shall not be removed without cause by
shareholders, except in the case of a director elected by the holders of any
class or series of Preferred Stock, now or hereafter authorized, voting as a
class or series, when so entitled by the provisions of the Certificate of
Incorporation applicable thereto.
TENTH. In addition to any vote that may be required by law or in the
Certificate of Incorporation in respect of any class or series of Preferred
Stock, now or hereafter authorized, the provisions of Articles 6, 7, 8, 9, 10,
11 and 12 of the Certificate of Incorporation shall not be amended or repealed,
or a new provision adopted inconsistent therewith, without the affirmative vote
of not less than two-thirds of the shares entitled to vote thereon at such
annual or special meeting of shareholders at which any such action is proposed.
ELEVENTH. Except as otherwise provided in the Certificate of
Incorporation in respect of any class or series of Preferred Stock, now or
hereafter authorized, the By-laws of the corporation may be amended or repealed,
or new By-laws may be adopted, either (a) by a vote of shareholders entitled to
vote at any annual or special meeting of shareholders, or (b) by a vote of the
majority of the entire Board of Directors at any regular or special meeting of
directors; provided, however, that any amendment or repeal of, or the adoption
of any new By-law or provision inconsistent with, Article I (Sections 1.2, 1.13
or 1.14), Article II (Sections 2.2, 2.3, or 2.7) or Article VI (Sections 6.6 or
6.7) of the By-laws, if by action of such shareholders, shall be only upon the
affirmative vote of not less than two-thirds of the shares entitled to vote
thereon at such annual or special meeting shareholders at which any such action
is proposed and, if by action of the Board of Directors, shall be only upon the
approval of not less than two-thirds of the entire Board of Directors at any
regular or special meeting of directors.
TWELFTH. Except as may be provided by the Board of Directors in
accordance with paragraph A of Article 4 of respect of any particular series of
Preferred Stock, any action required or permitted to be taken by the
shareholders of the Corporation must be taken at a duly called annual or special
meeting of such holders and may not be taken by any consent in writing by such
holders. Except as otherwise provided for herein or required by law, special
meetings of shareholders of the corporation for any purpose or purposes may be
called only by the Chairman of the Board, the President or the Board of
Directors pursuant to a resolution stating the purpose or purposes thereof, and
any power of shareholders to call a special meeting is specifically denied.
THIRTEENTH. A director of the Corporation shall not be personally
liable to the Corporation or its shareholders for damages for any breach of duty
as a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the Business Corporation Law as
currently in effect or as it may hereafter be amended. No amendment,
modification or repeal of this Article THIRTEENTH shall adversely affect any
right or protection of a director that exists at the time of such amendment,
modification or repeal.
FOURTEENTH. The foregoing restated Certificate of Incorporation was
authorized by the Board of Directors of the Corporation by unanimous written
consent dated February 5, 1999, followed by written consent of the sole
shareholder dated February 5, 1999.
IN WITNESS WHEREOF, the undersigned have signed this restated
Certificate of Incorporation on February 5, 1999 and affirm the statements
contained herein as true under the penalties of perjury.
NIAGARA MOHAWK HOLDINGS, INC.
By /s/William E. Davis
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William E. Davis
Chairman and
Chief Executive Officer
By /s/Kapua A. Rice
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Kapua A. Rice
Secretary