SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest
event reported) March 18, 1999
Niagara Mohawk Holdings, Inc.
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(Exact name of registrant as specified in its charter)
New York 16-1549726
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(State of (Commission File Number) (IRS Employer
incorporation) Identification No.)
300 Erie Boulevard West, Syracuse, New York 13202
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(Address of principal executive offices) (Zip Code)
(315) 474-1511
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(Registrant's telephone number,
including area code)
[N/A]
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
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On March 18, 1999, Niagara Mohawk Power Corporation ("Niagara Mohawk") was
reorganized into a holding company structure pursuant to an Agreement and Plan
of Exchange ("Plan of Exchange") between Niagara Mohawk and Niagara Mohawk
Holdings, Inc. (the "Company"). The Plan of Exchange was approved on June 29,
1998, by more than two-thirds of the outstanding Niagara Mohawk Common Stock
entitled to vote. As part of the reorganization, all of the outstanding shares
of Niagara Mohawk Common Stock, $1.00 par value per share, were exchanged on a
share-for-share basis for shares of Common Stock, par value $.01 per share, of
the Company, and Niagara Mohawk became a subsidiary of the Company. The Board
of Directors of Niagara Mohawk, prior to the exchange, has become the Board of
Directors of the Company. The preferred stock and debt of Niagara Mohawk were
not exchanged and remain securities of Niagara Mohawk.
The Common Stock of Niagara Mohawk was registered pursuant to Section 12(b) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), and listed on
the New York Stock Exchange. Niagara Mohawk is delisting its Common Stock from
the New York Stock Exchange, and the registration of the Common Stock under the
Exchange Act will be terminated.
Pursuant to Rule 12g-3(a) under the Exchange Act, the Company's Common Stock is
deemed to be registered under Section 12(b) of the Exchange Act. The Company's
Common Stock was approved for listing on the New York Stock Exchange.
Item 7. Financial Statements and Exhibits.
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See Exhibit Index.
<PAGE>
SIGNATURE
Pursuant to the requirements 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 HOLDINGS, INC.
(Registrant)
By: /s/Steven W. Tasker
-----------------------
Steven W. Tasker
Chief Financial Officer
Date: March 18, 1999
<PAGE>
EXHIBIT INDEX
Following is the index of Exhibits furnished in accordance with the provisions
of 601 of Regulation S-K, filed as part of this current report on Form 8-K.
Exhibit 2-1 is incorporated herein by reference from the previous filing with
the Securities and Exchange Commission indicated:
Exhibit No. Filed In As Exhibit No.
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2-1 Agreement and Plan of Exchange between 2(a)
Niagara Mohawk Power Corporation and
Niagara Mohawk Holdings, Inc. -
Registration No. 333-49769
Exhibit 99-1 Restated Certificate of Incorporation of Niagara Mohawk
Holdings, Inc. -Under Section 807 of the Business Corporation
Law of New York - filed February 18, 1999 in the office of the
New York Secretary of State
Exhibit 99-2 By-laws of Niagara Mohawk Holdings, Inc.
EXHIBIT 99-1
RESTATED CERTIFICATE OF INCORPORATION
OF
NIAGARA MOHAWK HOLDINGS, INC.
Under Section 807 of the Business Corporation Law
The undersigned, being Chairman and Chief Executive Officer and
Secretary of Niagara Mohawk Holdings, Inc., a New York corporation, hereby
certify that:
FIRST. The name of the corporation is Niagara Mohawk Holdings, Inc.
SECOND. The Certificate of Incorporation of the corporation was filed
by the Department of State on April 2,1998.
THIRD. The Certificate of Incorporation is amended or changed to
effect one or more amendments or changes authorized by the Business Corporation
Law, namely a cross reference in Article Sixth from Article 10 to Article 11 and
to provide that the By-laws shall be amended by a vote of the majority of the
entire Board of Directors rather than a majority of directors present. The text
of the Certificate of Incorporation is hereby restated as so amended or changed
to read as follows:
FIRST. The name of the corporation is Niagara Mohawk Holdings, Inc.
(the "Corporation").
SECOND. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Business
Corporation Law of the state of New York, provided that any act or activity
requiring the consent or approval of any state official, department, board,
agency or other body shall not be engaged in without such consent or approval
first being obtained.
THIRD. The office of the Corporation within the state of New York is
to be located in the city of Syracuse, county of Onondaga.
<PAGE>
FOURTH. The aggregate number of shares which the Corporation shall
have authority to issue is (a) three hundred million (300,000,000) shares of
common shares with a par value of $0.01 per share (the "Common Stock") and fifty
million (50,000,000) shares of Preferred Stock, with a par value of $0.01 per
share (the "Preferred Stock").
The designations, relative rights, preferences and limitations of the
shares of such classes of stock are as follows:
A. The Preferred Stock may be issued from time-to-time by the Board
of Directors as shares of one or more series of Preferred Stock, and the Board
of Directors is expressly authorized, prior to issuance, in the resolution or
resolutions providing for the issue of shares of each particular series, to
establish and designate each particular series and to fix the rights,
preferences and limitations of each particular series, and the relative rights,
preferences and limitations between series, as follows:
(i) The distinctive serial designation of such series which shall
distinguish it from other series;
(ii) The number of shares included in such series, which number
(except where otherwise provided by the Board of Directors in creating such
series) may be increased (but not above the total number of authorized shares of
Preferred Stock) or decreased (but not below the number of the outstanding
shares of such series) from time-to-time by the Board of Directors; provided
that if the number of shares is decreased, the shares constituting such decrease
shall be restored to the status of authorized but unissued shares of Preferred
Stock;
(iii) The annual or other dividend rate or rates (or method of
determining such rate or rates) for shares of such series and the date or dates
upon which such dividends shall be payable;
(iv) Whether dividends on the shares of such series shall be
cumulative, and, in the case of shares of any series having cumulative dividend
rights, the date or dates (or method for determining such date or dates) from
which dividends on the shares of such series shall be cumulative;
(v) The amount or amounts per share which shall be paid out of the
assets of the Corporation to the holders of the shares of such series upon
voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation;
(vi) The price or prices (cash or otherwise) at which, the period or
periods within which and the terms and conditions upon which, if any, the shares
of such series may be purchased, redeemed or acquired (by exchange or
otherwise), in whole or in part;
(vii) Provision or provisions, if any, for the Corporation to
purchase, redeem or acquire (by exchange or otherwise), in whole or in part,
shares of such series pursuant to a sinking or other similar fund, and the price
or prices (cash or otherwise) at which, the period or periods within which and
the terms and conditions upon which the shares of such series shall be so
purchased, redeemed or acquired, in whole or in part, pursuant to such provision
or provisions;
(viii) The period or periods within which and the terms and
conditions, including the price or prices or the rate or rates of conversion or
exchange and the terms and conditions of any adjustments thereof, upon which, if
any, the shares of such series shall be convertible or exchangeable, in whole or
in part, at the option of the holder, the Corporation or another person into
shares of any class of stock or into shares of any series of any class or cash,
other property, indebtedness or other securities of the Corporation or another
corporation;
(ix) The voting rights, if any, of the shares of such series in
addition to those required by law, including the number of votes per share
(which may be fractional or more or less than one); and
(x) Any other relative rights, preferences or limitations of the
shares of such series not inconsistent with applicable law.
B. Except as may from time-to-time be required by law and except as
otherwise may be provided by the Board of Directors in accordance with paragraph
A of this Article 4 in respect of any particular series of Preferred Stock, all
voting rights of the Corporation shall be vested exclusively in the holders of
the Common Stock who shall be entitled to one vote per share on all matters.
FIFTH. The Secretary of State of the state of New York is designated
as agent of the Corporation upon whom process in any action or proceeding
against it may be served. The address to which the Secretary of State shall
mail a copy of any process against the Corporation served upon him is 300 Erie
Boulevard West, Syracuse, New York 13202, Attn: Corporate Secretary.
SIXTH. Subject to the voting provisions of Article 11, By-laws of the
Corporation may be adopted, amended or repealed by the Board of Directors of the
Corporation by the vote of a majority of the entire Board of Directors at a
meeting of the board at which a quorum is present.
SEVENTH. No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any shares of the corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe for or purchase such shares, or any securities convertible
into or exchangeable for such shares, which may at any time be issued, sold or
offered for sale by the Corporation.
EIGHTH. Subject to the rights, if any, of holders of any class or
series of Preferred Stock, now or hereafter authorized, special meetings of
shareholders may be called only by the Chairman of the Board or by the Board of
Directors pursuant to resolution adopted by a majority of the total number of
directors which the Corporation would have if there were no vacancies.
NINTH. The following provisions shall relate to the Board of
Directors of the Corporation:
A. The size of the Board of Directors shall be fixed by or pursuant
to the By-laws. The Board of Directors shall be divided into three classes
designated Class I, Class II and Class III. Such classes shall be as nearly
equal in number as the then total number of directors constituting the entire
Board permits. At the first annual meeting of shareholders, or any special
meeting in lieu thereof, Class I, Class II and Class III directors shall be
elected for terms expiring at the next succeeding annual meeting, the second
succeeding annual meeting and the third succeeding annual meeting, respectively,
and until their respective successors are elected and qualified. At each annual
meeting of shareholders after such first annual (or special) meeting of
shareholders, the directors chosen to succeed those in the class whose terms
then expire shall be elected by shareholders for terms expiring at the third
succeeding annual meeting after election, or for such lesser term for which one
or more may be nominated in a particular case in order to assure that the number
of directors in each class shall be appropriately constituted and until their
respective successors are elected and qualified. Newly created directorships or
any decrease in directorships resulting from increases or decreases in the
number of directors shall be so apportioned among the classes of directors as to
make all the classes as nearly equal in number as possible. Vacancies on the
Board of Directors at any time for any reason except the removal of directors
without cause may be filled by a majority of the directors then in office,
although less than a quorum. If the number of directors is increased by the
Board of Directors and any newly created directorships are filled by the Board,
there shall, to the extent required by New York law, be no classification of the
additional directors until the next annual meeting of shareholders.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock, now or hereafter authorized, shall have
the right, voting separately or by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by any
provisions of the Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into one or more classes pursuant to
this Article 9A unless expressly provided by such provisions.
B. Directors may be removed for cause by a vote of shareholders
entitled to vote thereon. Directors shall not be removed without cause by
shareholders, except in the case of a director elected by the holders of any
class or series of Preferred Stock, now or hereafter authorized, voting as a
class or series, when so entitled by the provisions of the Certificate of
Incorporation applicable thereto.
TENTH. In addition to any vote that may be required by law or in the
Certificate of Incorporation in respect of any class or series of Preferred
Stock, now or hereafter authorized, the provisions of Articles 6, 7, 8, 9, 10,
11 and 12 of the Certificate of Incorporation shall not be amended or repealed,
or a new provision adopted inconsistent therewith, without the affirmative vote
of not less than two-thirds of the shares entitled to vote thereon at such
annual or special meeting of shareholders at which any such action is proposed.
ELEVENTH. Except as otherwise provided in the Certificate of
Incorporation in respect of any class or series of Preferred Stock, now or
hereafter authorized, the By-laws of the corporation may be amended or repealed,
or new By-laws may be adopted, either (a) by a vote of shareholders entitled to
vote at any annual or special meeting of shareholders, or (b) by a vote of the
majority of the entire Board of Directors at any regular or special meeting of
directors; provided, however, that any amendment or repeal of, or the adoption
of any new By-law or provision inconsistent with, Article I (Sections 1.2, 1.13
or 1.14), Article II (Sections 2.2, 2.3, or 2.7) or Article VI (Sections 6.6 or
6.7) of the By-laws, if by action of such shareholders, shall be only upon the
affirmative vote of not less than two-thirds of the shares entitled to vote
thereon at such annual or special meeting shareholders at which any such action
is proposed and, if by action of the Board of Directors, shall be only upon the
approval of not less than two-thirds of the entire Board of Directors at any
regular or special meeting of directors.
TWELFTH. Except as may be provided by the Board of Directors in
accordance with paragraph A of Article 4 of respect of any particular series of
Preferred Stock, any action required or permitted to be taken by the
shareholders of the Corporation must be taken at a duly called annual or special
meeting of such holders and may not be taken by any consent in writing by such
holders. Except as otherwise provided for herein or required by law, special
meetings of shareholders of the corporation for any purpose or purposes may be
called only by the Chairman of the Board, the President or the Board of
Directors pursuant to a resolution stating the purpose or purposes thereof, and
any power of shareholders to call a special meeting is specifically denied.
THIRTEENTH. A director of the Corporation shall not be personally
liable to the Corporation or its shareholders for damages for any breach of duty
as a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the Business Corporation Law as
currently in effect or as it may hereafter be amended. No amendment,
modification or repeal of this Article THIRTEENTH shall adversely affect any
right or protection of a director that exists at the time of such amendment,
modification or repeal.
FOURTEENTH. The foregoing restated Certificate of Incorporation was
authorized by the Board of Directors of the Corporation by unanimous written
consent dated February 5, 1999, followed by written consent of the sole
shareholder dated February 5, 1999.
<PAGE>
IN WITNESS WHEREOF, the undersigned have signed this restated
Certificate of Incorporation on February 5, 1999 and affirm the statements
contained herein as true under the penalties of perjury.
NIAGARA MOHAWK HOLDINGS, INC.
By /s/William E. Davis
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William E. Davis
Chairman and
Chief Executive Officer
By /s/Kapua A. Rice
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Kapua A. Rice
Secretary
EXHIBIT 99-2
BY-LAWS
OF
NIAGARA MOHAWK HOLDINGS, INC.
ARTICLE 1.
Shareholders
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Section 1.1. Annual Meeting. A meeting of shareholders shall be held
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annually for the election of directors at such date and time as may be
designated by the Board of Directors from time-to-time. Any other proper
business may be transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the shareholders
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may be called by the Chairman of the Board or by the Board of Directors pursuant
to resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies, the Chairman of the Board or
the President, to be held at such date and time as may be stated in the notice
of the meeting. At any special meeting, only such business may be transacted
which is related to the purpose or purposes set forth in the notice of such
special meeting given pursuant to Section 1.4 of these By-laws.
Section 1.3. Place of Meetings. Meetings of shareholders shall be
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held at such place, within or without the state of New York, as may be fixed by
the Board of Directors. If no place is so fixed, such meetings shall be held at
the principal office of the Corporation in the state of New York.
Section 1.4. Notice of Meetings. Written notice of each meeting of
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shareholders shall be given stating the place, date and hour of the meeting.
Notice of a special meeting of shareholders shall indicate that it is being
issued by or at the direction of the person or persons calling the meeting and
shall state the purpose or purposes for which the meeting is called. If, at any
meeting of shareholders, action is proposed to be taken which would, if taken,
entitle objecting shareholders to receive payment for their shares, the notice
of such meeting shall include a statement of that purpose and to that effect and
shall be accompanied by a copy of Section 623 of the New York Business
Corporation Law as then in effect or an outline of its material terms. A copy
of the notice of each meeting of shareholders shall be given, personally or by
first class mail, not fewer than 10 nor more than 60 days before the date of the
meeting, or shall be given by third class mail not less than 24 nor more than 60
days before the date of the meeting, to each shareholder entitled to vote at
such meeting. If mailed, such notice shall be deemed given when deposited in
the United States mail, with postage thereon prepaid, directed to the
shareholder at his or her address as it appears on the record of shareholders,
or, if he or she shall have filed with the Secretary of the Corporation a
written request that notices to him or her be mailed to some other address, then
directed to him or her at such other address. When a meeting of shareholders is
adjourned to another time or place, it shall not be necessary to give any notice
of the adjourned meeting if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken, and at the
adjourned meeting any business may be transacted that might have been transacted
on the original date of the meeting. However, if after the adjournment the
Board of Directors fixes a new record date for the adjourned meeting, a notice
of the adjourned meeting shall be given to each shareholder of record on the new
record date entitled to notice under this Section 1.4.
Section 1.5. Waiver of Notice. Notice of meeting need not be given
----------------
to any shareholder who submits a signed waiver of notice, in person or by proxy,
whether before or after the meeting. The attendance of any shareholder at a
meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him or her.
Section 1.6. Inspectors. Voting at meetings of shareholders shall be
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conducted by inspectors. The Board of Directors, in advance of any
shareholders' meeting, shall appoint one or more inspectors to act at the
meeting or any adjournment thereof. In case any person appointed fails to
appear or act, the vacancy may be filled by appointment made by the Board in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his or her ability. The
inspectors shall determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of a quorum and
the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. On request of the person presiding at
the meeting or any shareholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter determined by them
and execute a certificate of any fact found by them.
Section 1.7. List of Shareholders at Meetings. A list of
--------------------------------
shareholders as of the record date, certified by the Secretary or any Assistant
Secretary or by a transfer agent, shall be produced at any meeting of
shareholders upon the request thereat or prior thereto of any shareholder. If
the right to vote at any meeting is challenged, the inspectors, or person
presiding thereat, shall require such list of shareholders to be produced as
evidence of the right of the persons challenged to vote at such meeting, and all
persons who appear from such list to be shareholders entitled to vote thereat
may vote at such meeting.
Section 1.8. Qualification of Voters. Every shareholder of record
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shall be entitled at every meeting of shareholders to one vote for every share
standing in his or her name on the record of shareholders, unless otherwise
provided in the Certificate of Incorporation. If the Certificate of
Incorporation provides for more or less than one vote for any share on any
matter, every reference in these by-laws to a majority or other proportion of
shares shall be construed to refer to such majority or other proportion of the
votes of such shares. Treasury shares as of the record date and shares held as
of the record date by another domestic or foreign corporation of any type or
kind, if a majority of the shares entitled to vote in the election of directors
of such other corporation is held as of the record date by the Corporation,
shall not be shares entitled to vote or to be counted in determining the total
number of outstanding shares. Shares held by an administrator, executor,
guardian, conservator, committee or other fiduciary, except a trustee, may be
voted by him or her or it, either in person or by proxy, without transfer of
such shares into his or her or its name. Shares held by a trustee may be voted
by him or her or it, either in person or by proxy, only after the shares have
been transferred into his or her or its name as trustee or into the name of his
or her or its nominee. Shares standing in the name of another domestic or
foreign corporation of any type or kind may be voted by such officer, agent or
proxy as the by-laws of such corporation may provide, or, in the absence of such
provision, as the board of directors of such corporation may determine. A
shareholder shall not sell his or her vote or issue a proxy to vote to any
person for any sum of money or anything of value except as permitted by law.
Section 1.9. Quorum of Shareholders. The holders of a majority of
----------------------
the votes of shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of any business, provided that when
a specified item of business is required to be voted on by a class or series,
voting as a class, the holders of a majority of the votes of shares of such
class or series shall constitute a quorum for the transaction of such specified
item of business. When a quorum is once present to organize a meeting, it is
not broken by the subsequent withdrawal of any shareholders. The shareholders
present in person or by proxy and entitled to vote may, by a majority of the
votes cast, adjourn the meeting despite the absence of a quorum.
Section 1.10. Proxies. Every shareholder entitled to vote at a
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meeting of shareholders or to express consent or dissent without a meeting may
authorize another person or persons to act for him or her by proxy. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the shareholder executing it, except as otherwise provided by law. The
authority of the holder of a proxy to act shall not be revoked by the
incompetence or death of the shareholder who executed the proxy unless, before
the authority is exercised, written notice of an adjudication of such
incompetence or of such death is received by the Secretary or any Assistant
Secretary. A shareholder may authorize another person or persons to act for the
shareholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be reasonably
determined that the telegram, cablegram or other electronic transmission was
authorized by the shareholder.
Section 1.11. Vote or Consent of Shareholders. Directors shall,
-------------------------------
except as otherwise required by law or by the Certificate of Incorporation, be
elected by a plurality of the votes cast at a meeting of shareholders by the
holders of shares entitled to vote in the election. Whenever any corporate
action, other than the election of directors, is to be taken by vote of the
shareholders, it shall, except as otherwise required by law or by the
Certificate of Incorporation, be authorized by a majority of the votes cast at a
meeting of shareholders by the holders of shares entitled to vote thereon.
Whenever shareholders are required or permitted to take any action by vote, such
action may be taken without a meeting on written consent, setting forth the
action so taken, signed by the holders of all outstanding shares entitled to
vote thereon. Written consent thus given by the holders of all outstanding
shares entitled to vote shall have the same effect as a unanimous vote of
shareholders.
Section 1.12. Fixing Record Date. For the purpose of determining the
------------------
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board of Directors may fix, in advance, a date
as the record date for any such determination of shareholders. Such date shall
not be more than 60 nor less than 10 days before the date of such meeting, or
more than 60 days prior to any other action. If no record date is fixed: (1)
the record date for the determination of shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if no notice is given,
the day on which the meeting is held; and (2) the record date for determining
shareholders for any other purpose shall be at the close of business on the day
on which the resolution of the Board of Directors relating thereto is adopted.
When a determination of shareholders of record entitled to notice of or to vote
at any meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date for the adjourned meeting.
Section 1.13. Advance Notice of Shareholder Proposals. The matters
---------------------------------------
to be considered and brought before any annual or special meeting of
shareholders of the Corporation shall be limited to only such matters, including
the nomination and election of directors, as shall be brought properly before
such meeting in compliance with the procedures set forth in this Section 1.13.
For any matter to be properly brought before any annual meeting of
shareholders, the matter must be (i) specified in the notice of annual meeting
given by or at the direction of the Board of Directors, (ii) otherwise brought
before the annual meeting by or at the direction of the Board of Directors; or
(iii) brought before the annual meeting in the manner specified in this Section
1.13 by a shareholder of record. In addition to any other requirements under
applicable law and the Certificate of Incorporation and By-laws of the
Corporation, persons nominated by shareholders for election as directors of the
Corporation and any other proposals by shareholders shall be properly brought
before the meeting only if notice of any such matter to be presented by a
shareholder at such meeting of shareholders (the "Shareholder Notice") shall be
delivered to the Secretary of the Corporation at the principal executive office
of the Corporation not less than 90 nor more than 120 days prior to the first
anniversary date of the annual meeting for the preceding year; provided,
however, if and only if the annual meeting is not scheduled to be held within a
period that commences 30 days before such anniversary date and ends 30 days
after such anniversary date (an annual meeting date outside such period being
referred to herein as an "Other Meeting Date"), such Shareholder Notice shall be
given in the manner provided herein by the later of the close of business on (i)
the date 90 days prior to such Other Meeting Date or (ii) the tenth day
following the date such Other Annual Meeting Date is first publicly announced or
disclosed; and provided further that for the first annual meeting after the
Corporation becomes the holding company of Niagara Mohawk Power Corporation, the
applicable deadlines shall be those that would have applied to Niagara Mohawk
Power Corporation. Any shareholder desiring to nominate any person or persons
(as the case may be) for election as a director or directors of the Corporation
shall deliver, as part of such Shareholder Notice, a statement in writing
setting forth the name of the person or persons to be nominated, the number and
class of all shares of each class of stock of the Corporation owned of record
and beneficially by each such person, as reported to such shareholder by such
nominee(s), the information regarding each such person required by paragraphs
(a), (e) and (f) of Item 401 of Regulation S-K adopted by the Securities and
Exchange Commission (or the corresponding provisions of any regulation
subsequently adopted by the Securities and Exchange Commission applicable to the
Corporation), each such person's signed consent to serve as a director of the
Corporation if elected, such shareholder's name and address and the number and
class of all shares of each class of stock of the Corporation owned of record
and beneficially by such shareholder. Any shareholder who gives a Shareholder
Notice of any matter proposed to be brought before the meeting (not involving
nominees for director) shall deliver, as part of such Shareholder Notice, the
text of the proposal to be presented and a brief written statement of the
reasons why such shareholder favors the proposal and setting forth such
shareholder's name and address, the number and class of all shares of each class
of stock of the Corporation owned of record and beneficially by such shareholder
and, if applicable, any material interest of such shareholder in the matter
proposed (other than as a shareholder). As used herein, shares "beneficially
owned" shall mean all shares which such person is deemed to beneficially own
pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the
"Exchange Act").
Notwithstanding anything in this Section 1.13 to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Corporation is increased and either all of the nominees for director or the
size of the increased Board of Directors is not publicly announced or disclosed
by the Corporation at least 100 days prior to the first anniversary of the
preceding year's annual meeting, a Shareholder Notice shall also be considered
timely hereunder, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive office of the Corporation not later than
the close of business on the tenth day following the first date all of such
nominees or the size of the increased Board of Directors shall have been
publicly announced or disclosed.
Only such matters shall be properly before a special meeting
of shareholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. In the event the Corporation calls a special
meeting of shareholders for the purpose of electing one or more directors to the
Board of Directors, any shareholder may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the Shareholder Notice required by Section 1.13 hereof
shall be delivered to the Secretary of the Corporation at the principal
executive office of the Corporation not later than the close of business on the
tenth day following the day on which the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting is
publicly announced or disclosed.
For purposes of this Section 1.13, a matter shall be deemed to have
been "publicly announced or disclosed" if such matter is disclosed in a press
release reported by the Dow Jones News Service, Associated Press, or comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission.
In no event shall the adjournment of an annual meeting, or any
announcement thereof, commence a new period for the giving of notice as provided
in this Section 1.13. This Section 1.13 shall not apply to (i) shareholders'
proposals made pursuant to Rule 14a-8 under the Exchange Act or (ii) the
election of directors selected by or pursuant to the provisions of Article IV of
the Certificate of Incorporation relating to the rights of the holders of any
class or series of stock of the Corporation having a preference over the Common
Stock as to dividends or upon liquidation to elect directors under specified
circumstances.
The person presiding at any meeting of shareholders, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a meeting has been duly given in
the manner provided in this Section 1.13 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall not be
considered.
Section 1.14. Organization. Meetings of shareholders shall be
------------
presided over by the Chairman of the Board, if any, or in the absence of the
Chairman of the Board by the President, or in the absence of the President by a
Vice President, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary, or in the absence of the
Secretary, an Assistant Secretary, shall act as secretary of the meeting, but in
the absence of the Secretary and any Assistant Secretary the chairman of the
meeting may appoint any person to act as secretary of the meeting. The order of
business at each such meeting shall be as determined by the chairman of the
meeting. The chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts and
things as are necessary or desirable for the proper conduct of the meeting,
including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof and the opening
and closing of the voting polls.
Section 1.15. Confidentiality. Whenever an action shall require the
---------------
vote of shareholders, the tabulations that identify the particular vote of a
shareholder on all proxies, consents, authorizations and ballots shall be kept
confidential, except as disclosure may be required (i) by applicable law, (ii)
in pursuit or defense of legal proceedings, (iii) to resolve a bona fide dispute
as to the authenticity of one or more proxies, consents, authorizations or
ballots or as to the accuracy of any tabulation of such proxies, consents,
authorizations or ballots, (iv) if an individual shareholder requests that his
or her vote and identity be forwarded to the Corporation, or (v) in the event of
a proxy or consent solicitation in opposition to the solicitation of the Board
of Directors of the Corporation; and the receipt and tabulation of such votes
will be by an independent third party not affiliated with the corporation.
Comments written on proxies, consents, authorizations and ballots, will be
transcribed and provided to the secretary of the Corporation without reference
to the vote of the shareholder, except where such shareholder has requested that
the nature of their vote be forwarded to the Corporation.
ARTICLE 2.
Board of Directors
------------------
Section 2.1. Power of Board and Qualification of Directors. The
---------------------------------------------
business of the Corporation shall be managed under the direction of the Board of
Directors. Each director shall be at least 18 years of age. No person who has
reached age 70 by January 1 in the year such director would otherwise stand for
election shall, following their initial election, stand for reelection as a
director.
Section 2.2. Number of Directors. The number of directors
-------------------
constituting the entire Board of Directors shall be the number, not less than
three, fixed from time-to-time by a majority of the total number of directors
which the Corporation would have, prior to any increase or decrease, if there
were no vacancies, provided that no decrease shall shorten the term of any
incumbent director.
Section 2.3. Election, Terms and Vacancies. The Board of Directors
-----------------------------
shall be divided into three classes designated Class I, Class II and Class III.
Such classes shall be as nearly equal in number as the then total number of
directors constituting the entire Board permits. At the first annual meeting of
shareholders, or any special meeting in lieu thereof, Class I, Class II and
Class III directors shall be elected for terms expiring at the next succeeding
annual meeting, the second succeeding annual meeting and the third succeeding
annual meeting, respectively, and until their respective successors are elected
and qualified. At each annual meeting of shareholders after such first annual
(or special) meeting shareholders, the directors chosen to succeed those in the
class whose terms then expire shall be elected by shareholders for terms
expiring at the third succeeding annual meeting after election, or for such
lesser term for which one or more may be nominated in a particular case in order
to assure that the number of directors in each class shall be appropriately
constituted and until their respective successors are elected and qualified.
Newly created directorships or any decrease in directorships resulting from
increases or decreases in the number of directors shall be so apportioned among
the classes of directors as to make all the classes as nearly equal in number as
possible. Vacancies on the Board of Directors at any time for any reason except
the removal of directors without cause may be filled by a majority of the
directors then in office, although less than a quorum. If the number of
directors is increased by the Board of Directors and any newly created
directorships are filled by the Board, there shall, to the extent required by
New York law, be no classification of the additional directors until the next
annual meeting of shareholders.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock, now or hereafter authorized, shall have
the right, voting separately or by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by any
provisions of the Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into one or more classes pursuant to
this Section 2.3 unless expressly provided by such provisions.
Section 2.4. Quorum of Directors and Action by the Board. Unless a
-------------------------------------------
greater proportion is required by law or by the Certificate of Incorporation,
one third of the entire Board of Directors shall constitute a majority for the
transaction of business or of any specified item of business. Except where
otherwise provided by law or in the Certificate of Incorporation or these
by-laws, the vote of a majority of the directors present at a meeting at the
time of such vote, if a quorum is then present, shall be the act of the Board.
Any action required or permitted to be taken by the Board of Directors may be
taken without a meeting if all members of the Board consent in writing to the
adoption of a resolution authorizing the action. The resolution and the written
consents by the members of the Board shall be filed with the minutes of the
proceedings of the Board. Except as otherwise provided by law, all corporate
action to be taken by the Board of Directors shall be taken at a meeting of the
Board or by unanimous written consent. Any one or more members of the Board of
Directors may participate in a meeting of the Board by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time, and participation by such
means shall constitute presence in person at such meeting.
<PAGE>
Section 2.4.1. Meetings of the Board. An annual meeting of the Board
---------------------
of Directors shall be held in each year as soon as practicable after the annual
meeting of shareholders. Regular meetings of the Board shall be held at such
times as may be fixed by the Board. Special meetings of the Board may be held
at any time whenever called by the Chairman of the Board, if any, the President
or any two directors. Meetings of the Board of Directors shall be held at such
places within or without the State of New York as may be fixed by the Board for
annual and regular meetings and in the notice of meeting for special meetings.
If no place is so fixed, meetings of the Board shall be held at the principal
office of the Corporation. No notice need be given of annual or regular
meetings of the Board of Directors. Notice of each special meeting of the Board
shall be given to each director either by mail not later than the third business
day prior to the meeting or by telegram, by facsimile transmission, by written
message or orally to the director not later than noon, New York time, on the day
prior to the meeting. Notices shall be deemed to have been given by mail when
deposited in the United States mail, by telegram at the time of filing, by
facsimile transmission upon confirmation of receipt, and by messenger at the
time of delivery by the messenger. Notices by mail, telegram, facsimile
transmission or messenger shall be sent to each director at the address or
facsimile number designated by him or her for that purpose, or, if none has been
so designated, at his or her last known residence or business address. Notice
of a meeting of the Board of Directors need not be given to any director who
submits a signed waiver of notice whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to him or her. A notice or waiver of notice need not specify
the purpose of any meeting of the Board of Directors. A majority of the
directors present, whether or not a quorum is present, may adjourn any meeting
to another time and place. Notice of any adjournment of a meeting to another
time or place shall be given in the manner described above to the directors who
were not present at the time of the adjournment and, unless such time and place
are announced at the meeting, to the other directors.
Section 2.5. Resignation. Any director of the Corporation may resign
-----------
at any time by giving written notice to the Board of Directors or to the
Chairman of the Board, if any, or the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective.
Section 2.6. Removal of Directors. Directors may be removed for
--------------------
cause by a vote of shareholders entitled to vote thereon. Directors shall not
be removed without cause by shareholders, except in the case of a director
elected by the holders of any class or series of Preferred Stock, now or
hereafter authorized, voting as a class or series, when so entitled by the
provisions of the Certificate of Incorporation applicable thereto.
<PAGE>
Section 2.6.1. Compensation of Directors. The Board of Directors
-------------------------
shall have authority to fix the compensation of directors for services in any
capacity, which shall be a charge to be paid by the Corporation. The Board of
Directors may elect or appoint members of the Board as officers, members of
committees, or agents of the Corporation, may assign duties to be performed and
may fix the amount of the respective salaries, fees or other compensation
therefor, and the amount so fixed shall be a charge to be paid by the
Corporation. In addition to any other compensation provided pursuant to these
by-laws, each director shall be entitled to receive a fee, in amount as fixed
from time to time by resolution of the Board of Directors, for attendance at any
meeting of the Board, or of any committee of the Board, together with his
expenses of attendance, if any.
ARTICLE 3.
Executive and Other Committees
------------------------------
Section 3.1. Executive and Other Committees of Directors. The Board
-------------------------------------------
of Directors, by resolution adopted by a majority of the entire Board, shall
designate from among its members an Executive Committee and an Audit Committee
and may designate such other committees, each consisting of one or more
directors, and each of which, to the extent provided in the resolution, shall
have all the authority of the Board, except that no such committee shall have
authority as to (1) the submission to shareholders of any action that needs
shareholders' approval; (2) the filling of vacancies in the Board or in any
committee thereof; (3) the fixing of compensation of the directors for serving
on the Board or on any committee thereof; (4) the amendment or repeal of the
by-laws, or the adoption of new by-laws; or (5) the amendment or repeal of any
resolution of the Board which, by its terms, shall not be so amendable or
repealable. The Board of Directors may designate one or more directors as
alternate members of any such committee, who may replace any absent member or
members at any meeting of such committee. Unless the Board of Directors
otherwise provides, each committee designated by the Board may adopt, amend and
repeal rules for the conduct of its business. In the absence of a provision by
the Board or a provision in the rules of such committee to the contrary, a
majority of the entire authorized number of members of such committee shall
constitute a quorum for the transaction of business, the vote of a majority of
the members present at a meeting at the time of such vote if a quorum is then
present or the unanimous written consent of all members thereof shall be the act
of such committee, any one or more members of such committee may participate in
a meeting of such committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time and participation by such means shall
constitute presence in person at such meeting, and in other respects each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these by-laws. Each
such committee shall serve at the pleasure of the Board of Directors.
<PAGE>
ARTICLE 4.
Officers
--------
Section 4.1. Officers. As soon as practicable after the annual
--------
meeting of shareholders in each year, the Board of Directors shall elect or
appoint a Chief Executive Officer, President, a Chief Financial Officer, a
Secretary and a Treasurer, and it may, if it so determines, elect or appoint
from among its members a Chairman of the Board and one or more Vice Chairmen of
the Board. The Board may also elect or appoint one or more Controllers, Vice
Presidents, Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers and may give any of them such further designations or alternate
titles as it considers desirable. Any two or more offices may be held by the
same person.
Section 4.2. Term of Office; Resignation; Removal; Vacancies. Except
-----------------------------------------------
as otherwise provided in the resolution of the Board of Directors electing or
appointing any officer, all officers shall be elected or appointed to hold
office until the meeting of the Board of Directors following the next succeeding
annual meeting of shareholders. Each officer shall hold office for the term for
which he or she is elected or appointed, and until his or her successor has been
elected or appointed and qualified. Any officer may resign at any time by
giving written notice to the Board or to the Chairman of the Board, if any, or
the President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. Any
officer may be removed by the Board, with or without cause, at any time.
Removal of an officer without cause shall be without prejudice to his contract
rights, if any, with the Corporation, but the election or appointment of an
officer shall not of itself create contract rights. Any vacancy occurring in
any office of the Corporation by death, resignation, removal or otherwise may be
filled for the unexpired portion of the term by the Board.
Section 4.3. Powers and Duties. The officers of the Corporation
-----------------
shall have such authority and perform such duties in the management of the
Corporation as may be pre-scribed by the Board of Directors and, to the extent
not so prescribed, as generally pertain to their respective offices, subject to
the control of the Board. Securities of other corporations held by the
Corporation may be voted by any officer designated by the Board and, in the
absence of any such designation, by the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice President, the Secretary or the
Treasurer. The Board may require any officer, agent or employee to give
security for the faithful performance of his duties.
<PAGE>
ARTICLE 5.
Forms of Certificates and Loss and
Transfer of Shares
------------------
Section 5.1. Forms of Share Certificates. The shares of the
---------------------------
Corporation shall be represented by certificates, in such forms as the Board of
Directors may prescribe, signed by the Chairman of the Board or the President or
a Vice President and the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer, and may be sealed with the seal of the Corporation or a
facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or its employee or if the
shares are listed on a national securities exchange. In case any officer who
has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer before such certificate is issued, it may be
issued by the Corporation with the same effect as if he or she were such officer
at the date of issue. If the Corporation is authorized to issue shares of more
than one class, each certificate representing shares issued by the Corporation
shall set forth upon the face or back of the certificate, or shall state that
the Corporation will furnish to any shareholder upon request and without charge,
a full statement of the designation, relative rights, preferences and
limitations of the shares of each class authorized to be issued and the
designation, relative rights, preferences and limitations of each series of any
class of preferred shares authorized to be issued in series so far as the same
have been fixed and the authority of the Board of Directors to designate and fix
the relative rights, preferences and limitations of other series. Each
certificate representing shares shall state upon the face thereof (1) that the
Corporation is formed under the laws of the State of New York; (2) the name of
the person or persons to whom issued; and (3) the number and class of shares,
and the designation of the series, if any, which such certificate represents.
Section 5.2. Transfers of Shares. Shares of the Corporation shall be
-------------------
transferable on the record of shareholders upon presentation to the Corporation
or a transfer agent of a certificate or certificates representing the shares
requested to be transferred, with proper endorsement on the certificate or on a
separate accompanying document, together with such evidence of the payment of
transfer taxes and compliance with other provisions of law as the Corporation or
its transfer agent may require.
Section 5.3. Lost, Stolen or Destroyed Share Certificates. The
--------------------------------------------
Corporation may issue a new certificate for shares in place of any certificate
theretofore issued by it, alleged to have been lost or destroyed, and the
Corporation may require the owner of the lost or destroyed certificate, or such
owner's legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the
alleged loss or destruction of any such certificate or the issuance of any such
new certificate.
ARTICLE 6.
Other Matters
-------------
Section 6.1. Corporate Seal. The Board of Directors may adopt a
--------------
corporate seal, alter such seal at pleasure, and authorize it to be used by
causing it or a facsimile to be affixed or impressed or reproduced in any other
manner.
Section 6.2. Fiscal Year. The fiscal year of the Corporation shall
-----------
be fixed by the Board of Directors.
Section 6.3. When Notice or Lapse of Time Unnecessary. Whenever for
----------------------------------------
any reason the Corporation or the Board of Directors or any committee thereof is
authorized to take any action after notice to any person or persons or after the
lapse of a prescribed period of time, such action may be taken without notice
and without the lapse of such period of time if at any time before or after such
action is completed the person or persons entitled to such notice or entitled to
participate in the action to be taken or, in the case of a shareholder, his or
her attorney-in-fact, submit a signed waiver of notice of such requirements.
Section 6.4. Books to be Kept. The Corporation shall keep (a)
----------------
correct and complete books and records of account, (b) minutes of the
proceedings of the shareholders, Board of Directors and each committee and (c) a
current list of the directors and officers and their residence addresses; and
the Corporation shall also keep at its office located in the county of Onondaga
in the State of New York or at the office of its transfer agent or registrar in
the State of New York, if any, a record containing the names and addresses of
all shareholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof. Any of the foregoing
books, minutes or records may be in written form or in any other form capable of
being converted into written form within a reasonable time.
Section 6.5. Interest of Directors and Officers in Transactions. In
---------------------------------- ---------------
the absence of fraud, no contract or other transaction between the Corporation
and one or more of its directors, or between the Corporation and any other
Corporation, firm, association or other entity in which one or more of its
directors are directors or officers, or have a substantial financial interest,
shall be either void or voidable, irrespective of whether such interested
director or directors are present at the meeting of the Board of Directors, or
of a committee thereof, which approves such contract or transaction and
irrespective of whether his, her or their votes are counted for such purpose:
(1) If the material facts as to such director's interest in such contract or
transaction and as to any such common directorship, officership or financial
interest are disclosed in good faith or known to the Board of Directors, or a
committee thereof, and the Board or committee approves such contract or
transaction by a vote sufficient for such purpose without counting the vote of
such interested director or, if the votes of the disinterested directors are
insufficient to constitute an act of the Board under Section 2.4 of these
by-laws, by unanimous vote of the disinterested directors; or
(2) If the material facts as to such director's interest in such contract or
transaction and as to any such common directorship, officership or financial
interest are disclosed in good faith or known to the shareholders entitled to
vote thereon, and such contract or transaction is approved by vote of such
shareholders.
If a contract or other transaction between the Corporation and one or more of
its directors, or between the Corporation and any other Corporation, firm,
association or other entity in which one or more of its directors are directors
or officers or have a substantial financial interest, is not so approved, the
Corporation may avoid the contract or transaction unless the party or parties
thereto shall establish affirmatively that the contract or transaction was fair
and reasonable as to the Corporation at the time it was approved by the Board, a
committee or the shareholders. Notwithstanding the foregoing, no loan, except
advances in connection with indemnification, shall be made by the Corporation to
any director unless it is authorized by vote of the shareholders. For this
purpose, shares of the director who would be the borrower shall not be shares
entitled to vote.
Section 6.6. Indemnification of Directors, Officers and Employees.
----------------------------------------------------
The Corporation shall indemnify to the full extent permitted by law any person
made or threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a director, officer
or employee of the Corporation or serves or served at the request of the
Corporation any other enterprise as a director, officer or employee. Expenses
incurred by any such person in defending any such action, suit or proceeding
shall be paid or reimbursed by the Corporation promptly upon receipt by it of an
undertaking of such person to repay such expenses if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation. The rights provided to any person by this by-law shall be
enforceable against the Corporation by such person who shall be presumed to have
relied upon it in serving or continuing to serve as a director, officer or
employee as provided above. No amendment of this by-law shall impair the rights
of any person arising at any time with respect to events occurring prior to such
amendment. For purposes of this by-law, the term "Corporation" shall include
any predecessor of the Corporation and any constituent Corporation (including
any constituent of a constituent) absorbed by the Corporation in a consolidation
or merger; the term "other enterprise" shall include any Corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise;
service "at the request of the Corporation" shall include service as a director,
officer or employee of the Corporation which imposes duties on, or involves
services by, such director, officer or employee with respect to an employee
benefit plan, its participants or beneficiaries; any excise taxes assessed on a
person with respect to an employee benefit plan shall be deemed to be
indemnifiable expenses; and action taken or omitted by a person with respect to
an employee benefit plan which such person reasonably believes to be in the
interest of the participants and beneficiaries of such plan shall be deemed to
be action not opposed to the best interests of the Corporation.
Section 6.7. Amendments. Except as otherwise provided in the
----------
Certificate of Incorporation in respect of any class or series of Preferred
Stock, now or hereafter authorized, the By-laws of the Corporation may be
amended or repealed, or new By-laws may be adopted, either (a) by a vote of
shareholders entitled to vote at any annual or special meeting of shareholders,
or (b) by a vote of the majority of the entire Board of Directors at any regular
or special meeting of directors; provided, however, that any amendment or repeal
-------- -------
of, or the adoption of any new By-law or provision inconsistent with, Article I
(Sections 1.2, 1.13 or 1.14), Article II (Sections 2.2, 2.3, or 2.7) or Article
VI (Sections 6.6 or 6.7) of these By-laws, if by action of such shareholders,
shall be only upon the affirmative vote of not less than two-thirds of the
shares entitled to vote thereon at such annual or special meeting of
shareholders at which any such action is proposed and, if by action of the Board
of Directors, shall be only upon the approval of not less than two-thirds of the
entire Board of Directors at any regular or special meeting of directors.
