Annual Report (Form 10-K), fiscal year 1994

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:
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:
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:
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.



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:
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.
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.

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.

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.

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
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
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.
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.
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.
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:
(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:
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:
(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:
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:
(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:
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)
BY-LAWS
NIAGARA MOHAWK POWER CORPORATION
ADOPTED JANUARY 5, 1950
(As Amended December 8, 1994)
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