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): August 1, 1994
NIAGARA MOHAWK POWER CORPORATION
(Exact name of registrant as specified in its charter)
State of New York 1-2987 15-0265555
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
300 Erie Boulevard West, Syracuse, N.Y. 13202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (315) 474-1511
<PAGE>
Item 7: Financial Statements and Exhibits.
(c) Exhibits.
(1) Underwriting Agreement, dated as of August 1, 1994,
between Niagara Mohawk Power Corporation and the Underwriters named
therein. Incorporated by reference as Exhibit 1(d) to the Company's
Registration Statement No. 33-51073 in accordance with Item 601(b)(1) of
Regulation S-K.
<PAGE>
SIGNATURES
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 hereunto duly authorized.
NIAGARA MOHAWK POWER CORPORATION
By:/s/ Steven W. Tasker
-----------------------
Vice President-Controller
and Principal Accounting Officer
Date: August 8, 1994
NIAGARA MOHAWK POWER CORPORATION
6,000,000 Shares
PREFERRED STOCK
9-1/2% SERIES
($25 par value)
UNDERWRITING AGREEMENT
New York, New York
August 1, 1994
To the Representatives
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Ladies and Gentlemen:
Niagara Mohawk Power Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters (the "Underwriters"), for
whom you are acting as Representatives (the "Representatives"), 6,000,000
shares (the "Securities"), of Preferred Stock, 9-1/2% Series ($25 par
value) of the Company (the "Securities"). The respective numbers of the
Securities to be sold to each of the Underwriters is set forth in Schedule
II.
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement (with file number 33-51073) on such Form,
including a prospectus, for the registration under the Act of the
Securities, which registration statement has become effective. Such
registration statement and prospectus may have been amended or
supplemented from time to time prior to the date of this Agreement.
Any such amendment or supplement was filed with the Commission and any
such amendment has become effective. The Company will file with the
Commission a prospectus supplement (the "Prospectus Supplement")
relating to the Securities pursuant to Rule 424 under the Act. Copies
of such registration statement and prospectus, and such amendment or
supplement, the Prospectus Supplement and all documents incorporated
by reference therein which were filed with the Commission on or prior
to the date of this Agreement have been delivered to you. Such
registration statement or any prospectus (including any preliminary
prospectus supplement, the "Preliminary Prospectus Supplement"),
including any used in place thereof pursuant to Rule 429 under the
Act, as amended or supplemented prior to the date of this Agreement
and as supplemented by the Prospectus Supplement, are hereinafter
called the "Registration Statement" and the "Prospectus,"
respectively. Any reference herein to the Registration Statement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") on or before the date of this Agreement, and any
reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act deemed to be incorporated by reference therein after the
date of this Agreement.
(b)(i) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, and the Prospectus, at the date of this Agreement and at
the Closing Date (as hereinafter defined), any amendments thereof and
supplements thereto, complied or will comply in all material respects
with the Act and the Exchange Act and the respective rules thereunder
and (ii) neither the Registration Statement nor the Prospectus nor any
amendment thereof or supplement thereto contained or will contain any
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they are made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus,
at the time of the filing of such incorporated documents, conformed in
all material respects to the requirements of the Act or the Exchange
Act and the rules and regulations of the Commission thereunder and any
documents so filed and incorporated by reference subsequent to the
date of this Agreement will, when they are filed with the Commission,
conform in all material respects to the requirements of the Act and
the Exchange Act, and the rules and regulations of the Commission
thereunder; and none of such documents include or will include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(d) The accountants who certified or shall certify the audited
financial statements incorporated by reference as parts of the
Registration Statement and the Prospectus are independent accountants
as required by the Act and the rules under the Act.
(e) The financial statements and information included or
incorporated by reference in the Registration Statement present fairly
the financial position, results of operations and changes in financial
position of the Company at the respective dates and for the respective
periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved except as therein stated. The Company has no
material contingent obligation which is not disclosed in the
Registration Statement and Prospectus.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has
not been any material adverse change in the condition (financial or
other), earnings, business or properties of the Company, whether or
not arising in the ordinary course of business, (2) there has been no
transaction entered into by the Company which is material to the
Company, other than transactions in the ordinary course of business,
and (3) no dividend or distribution of any kind has been declared,
paid or made by the Company on its capital stock other than regular
quarterly dividends on its Common Stock and its Preferred Stock.
(g) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus; the shares of issued and
outstanding capital stock of the Company set forth therein have been
duly and validly issued and are fully paid and nonassessable; the
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
to the Underwriters against payment of the consideration specified
herein, will be duly authorized and validly issued and fully paid and
nonassessable; stockholders of the Company will have no preemptive
rights with respect to the issuance of the Securities; and the
Securities conform in all material respects to all statements relating
thereto contained in the Registration Statement and Prospectus.
(h) The Company is a duly organized and validly existing
corporation in good standing under the laws of the State of New York;
the Company holds all material licenses, certificates and permits from
governmental authorities necessary for the conduct of its business;
and the Company has the corporate power and authority to own its
properties and conduct its business as described in the Prospectus.
(i) Neither the issuance or sale of the Securities, nor the
consummation of any of the transactions herein contemplated, nor the
fulfillment of the terms hereof, will conflict with, result in a
breach of or constitute a default under any of the terms, provisions
or conditions of the Certificate of Consolidation, as amended, or By-
Laws of the Company, the Mortgage Trust Indenture between the Company
and Marine Midland Bank, as Trustee, dated as of October 1, 1937, as
amended or supplemented, or other agreement or instrument to which the
Company is a party or by which it is bound or, to the best knowledge
of the Company, any order or regulation applicable to the Company of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company.
(j) The Company has filed a petition with the Public Service
Commission of the State of New York ("PSC") with respect to the
issuance and sale of the Securities. The PSC has authorized the issue
and sale thereof but upon the express condition that the Company shall
file with the PSC for its consideration a copy of this Agreement and a
statement setting forth (i) the dividend rate for the Securities, (ii)
the initial public offering price thereof, (iii) the price to be paid
to the Company for the Securities, (iv) the underwriting commissions,
(v) the sinking fund provisions and (vi) the redemption prices and
dates with respect to redemption of the Securities at the option of
the Company, such authority being subject to abrogation by order
issued by one or more Commissioners of the PSC within twenty-four
hours after the filing of such information, unless prior to such time
the Company shall be advised by the Director of Accounting and Finance
of the PSC or designee thereof that the applicable conditions have
been met and that such authority is not to be abrogated.
(k) No person or corporation which is a "holding company" or a
"subsidiary of a holding company," within the meaning of such terms as
defined in the Public Utility Holding Company Act of 1935, directly or
indirectly owns, controls or holds with power to vote 10% or more of
the outstanding voting securities of the Company; and the Company is
presently exempt from the provisions of the Public Utility Holding
Company Act of 1935 that would require it to register thereunder.
(l) The Company and each "significant subsidiary" as defined
under Rule 405 under the Act of the Company have good and valid title
to all or substantially all of their permanent fixed properties
(including the specified undivided interests in generating units and
plants referred to in the Prospectus), except as otherwise indicated
in the Prospectus, subject only to the respective liens of the
indentures securing their mortgage debt.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein
Company agrees to sell to you and each other Underwriter, and you and each
other Underwriter agree, severally and not jointly, to purchase from the
Company, at a purchase price of $25 per share, plus accumulated dividends,
if any, the number of Securities set forth in Schedule II hereto opposite
the name of such Underwriter (or such number of Securities increased as set
forth in Section 10 hereof).
As compensation to the Underwriters, the Company will pay the
Underwriters $4,633,000, representing an aggregate concession of $0.7875
per share for 5,680,000 shares of the Securities sold directly to the
public and to certain securities brokers and dealers ($4,473,000), and an
aggregate concession of $.50 per share for 320,000 shares of the Securities
sold to certain institutions ($160,000).
Upon authorization by the Representatives of the release of the
Securities, the Underwriters propose to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the offices of Winthrop, Stimson, Putnam &
Roberts, One Battery Park Plaza, New York, New York, at 10:00 a.m., New
York City time, on August 8, 1994 (or such other place, date and time not
later than eight full business days thereafter as the Representatives and
the Company shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 10 hereof (such date and time being herein called the "Closing
Date"). Delivery of the Securities to be purchased by the Underwriters
shall be made to the Representatives for the respective accounts of the
several Underwriters against (i) payment by the Underwriters of the
purchase price thereof to or upon the order of the Company by certified or
official bank check or checks payable in New York Clearing House funds and
(ii) payment to the Underwriters of their compensation specified in Section
2 hereof by certified or official bank check or checks payable in New York
Clearing House funds. Certificates for the Securities to be purchased by
the Underwriters shall be in definitive form and shall be registered in
such names and in such amounts as the Representatives may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the certificates for the Securities
available for inspection, checking and packaging by the Representatives in
New York, New York, not later than noon, New York City time, on the last
business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) With the consent of the Representatives, the Company will
cause the Prospectus Supplement to be electronically transmitted,
filed or mailed for filing pursuant to Rule 424 under the Act and will
notify the Representatives promptly of such filing or mailing. During
the period for which a prospectus relating to the Securities is
required to be delivered under the Act, the Company will promptly
advise the Representatives (i) when any amendment to the Registration
Statement shall have become effective, (ii) when any subsequent
supplement to the Prospectus has been electronically transmitted,
filed, or mailed for filing (if required), (iii) of any request by the
Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceedings for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
it shall be necessary, at any time to amend or supplement the
Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the
Company promptly will prepare and file with the Commission, subject to
paragraph (h) of this Section 4, an amendment or supplement that will
correct such statement or omission or an amendment or supplement that
will effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives a consolidated earnings statement
(which need not be audited) of the Company, for a twelve-month period
beginning after the date of the Prospectus Supplement filed pursuant
to Rule 424 under the Act, as soon as is reasonably practicable after
the end of such period, which will satisfy the provisions of Section
11(a) of the Act.
(d) The Company will furnish to each of the Representatives,
upon request, a signed copy of the Registration Statement as
originally filed and of each amendment thereto, including all powers
of attorney, consents and exhibits filed therewith (other than
exhibits incorporated by reference), and will deliver to the
Representatives conformed copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein)
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such
documents, in each case as soon as available and in such quantities as
the Representatives may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such action as may be required to qualify the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(f) For a period of five years from the date of the Prospectus
Supplement, the Company will furnish (or cause to be furnished) to the
each of the Representatives, upon request, copies of (i) all reports
to stockholders of the Company and (ii) all reports and financial
statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement
and continuing to and including the earlier of (i) the termination of
trading restrictions on the Securities, as notified to the Company by
the Representatives, and (ii) the thirtieth day after the Closing
Date, the Company will not offer, sell or otherwise dispose of any
shares of preferred stock of the Company (except under prior
contractual commitments that have been disclosed to you), without the
prior written consent of the Representatives, which consent shall not
be unreasonably withheld.
(h) The Company will not file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than
any prospectus supplement relating to the offering of securities
registered under the Registration Statement other than the Securities
and permitted by subsection (g) of Section 4, or any document required
to be filed under the Exchange Act which upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus)
to which you shall object in writing or which shall be disapproved in
writing by counsel for the Underwriters. The Company will furnish to
you prior to the filing thereof a copy of any such prospectus
supplement and any document which upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus.
(i) The Company will use its best efforts to promptly list the
Securities, subject to notice of issuance, on the New York Stock
Exchange.
5. Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, the Company will
pay all costs and expenses incident to the performance of the obligations
of the Company hereunder, including, without limiting the generality of the
foregoing, all costs, taxes and expenses incident to the issue and delivery
of the Securities to the Underwriters, all fees and expenses of the
Company's counsel and accountants, all costs and expenses incident to the
preparing, printing and filing of the Registration Statement (including all
exhibits thereto), the Prospectus and any amendments thereof or supplements
thereto, all costs and expenses (including fees of counsel not exceeding
$5,000 and their disbursements) incurred in connection with "blue sky"
qualifications, the legality of the Securities for investment, the rating
of the Securities and all costs and expenses of the printing and
distribution of all documents in connection with this underwriting. Except
as provided in this Section 5 and Section 8 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their
counsel and any advertising expenses in connection with any offer they may
make.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date
hereof and the Closing Date, to the accuracy of the statements of officers
of the Company made in any certificates given pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Company or the Representatives, threatened.
(b) The Company shall have furnished to the Representatives the
opinion, addressed to the Representatives, and dated the Closing Date,
of Winthrop, Stimson, Putnam & Roberts, counsel for the Company, to
the effect that (i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of New York, with full corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; (ii) the Securities have been duly authorized, and will,
upon issuance and delivery thereof against payment therefor pursuant
to this Agreement, be duly issued, fully paid and nonassessable and
have the rights set forth in the Company's Certificate of
Incorporation, as amended; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; (iii) the Securities conform
as to legal matters to the descriptions thereof and the statements
relating thereto contained in the Registration Statement and the
Prospectus; (iv) all proceedings required by the laws of the State of
New York in connection with the authorization and issuance of the
Securities and the sale thereof by the Company in accordance with this
Agreement have been taken and all orders, consents or other
authorizations or approvals of the PSC and of any other New York or
Federal public boards or bodies legally required for the validity
thereof or of any transaction hereunder have been obtained (other than
in connection or in compliance with the provisions of Blue Sky or
similar securities laws of any jurisdiction, as to which such counsel
need express no opinion); (v) this Agreement has been duly authorized,
executed and delivered by the Company; (vi) the Registration Statement
has become effective under the Act, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement, as of its effective date, the
Prospectus and any amendment thereof or supplement thereto, as of its
issue date and the Closing Date, and each document incorporated by
reference therein, each as of its respective filing date (except for
the financial statements and other financial or statistical data
included or incorporated therein as to which such counsel need express
no opinion) complied or comply as to form in all material respects
with the requirements of the Act and the Exchange Act and the rules
and regulations of the Commission thereunder; (vii) such counsel have
no reason to believe that the Registration Statement (including any
document incorporated therein), as of the later of the filing of the
Company's annual report or the effective date of the Registration
Statement, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (including the documents incorporated by reference therein)
at the time it was electronically transmitted to the Commission
pursuant to Rule 424(b) under the Act contained or on the Closing Date
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except for the financial statements and other
financial or statistical data included therein as to which such
counsel need express no opinion); (viii) the descriptions in the
Registration Statement or the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown and
such counsel do not know of any legal or governmental proceedings
required to be described in the Prospectus that are not described as
required, nor of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
and filed as required; and (ix) neither the issue or sale of the
Securities nor the consummation of any other of the transactions
contemplated by this Agreement will result in a breach by the Company
of any terms of, or constitute a default under, the Certificate of
Incorporation, as amended, or By-Laws of the Company or any indenture
or other agreement or undertaking of the Company known to such
counsel.
(c) The Representatives shall have received from their counsel
such opinion dated the Closing Date with respect to the validity of
the Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of a Vice President, the Treasurer or the Controller of
the Company and a Vice President, the Assistant Treasurer or the
Assistant Controller of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
that purpose have been instituted, or, to their knowledge,
threatened; and
(iii) the Registration Statement, as of the later of the date
it became effective or the date of filing of the Company's most
recent Annual Report on Form 10-K, does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Prospectus, including any amendments
thereof or supplements thereto and the documents incorporated by
reference therein, does not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and since the later of the date of the filing of the
Company's annual report or the effective date of the Registration
Statement, there has not occurred any event required to be set
forth in an amended or supplemented prospectus which has not been
so set forth and there has been no document required to be filed
under the Exchange Act and the rules and regulations thereunder,
which would be deemed to be incorporated by reference in the
Prospectus, which has not been so filed.
(e) The Representatives (i) shall have received at or prior to
the time of execution of this Agreement, a letter to the Board of
Directors of the Company dated the date of such execution and (ii)
shall receive at the Closing Date, a letter dated the date of delivery
thereof from Price Waterhouse stating that (1) with respect to the
Company and its subsidiaries they are independent accountants within
the meaning of the Act and the applicable published rules and
regulations thereunder; (2) in their opinion the unaudited
consolidated financial statements of the Company and subsidiary
companies included or incorporated by reference in the Registration
Statement and examined by such firm comply as to form in all material
respects with the applicable accounting requirements of the Act and
the published rules and regulations thereunder; (3) on the basis of
the following procedures (but not an examination in accordance with
generally accepted auditing standards): (A) a reading of the minutes
of meetings of the Board of Directors and stockholders of the Company
and its subsidiaries since the date of the last audited Balance Sheet
as set forth in the minute books through a specified date not more
than five business days prior to the date of delivery of such letter,
(B) performance of the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial
information as described in SAS 71, Interim Financial Information, on
the unaudited condensed consolidated interim financial statements of
the Company and its subsidiaries as incorporated by reference in the
Registration Statement and the Prospectus, (C) for purposes only of
the letter to be received at the Closing Date, performance of the
procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described
in SAS 71, Interim Financial Information, on the unaudited condensed
consolidated balance sheet as of June 30, 1994 and the unaudited
condensed consolidated statements of income and of cash flows for the
six-month periods ended June 30, 1994 and 1993 from which the
unaudited amounts of Operating Revenues, Operating Income, Net Income,
Earnings Available for Common Stock and Earnings per Average Share of
Common Stock for the twelve-month period ended June 30, 1994 and of
Long-Term Debt, Preferred Stock, Common Stock Equity and Total
Capitalization as of June 30, 1994, set forth under the caption
"Consolidated Financial Information" in the Prospectus Supplement,
were derived (D) if applicable, a reading of the latest available
unaudited interim financial data, and (E) inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters, nothing has come to their attention which caused
them to believe that (I) the unaudited condensed consolidated interim
financial statements, incorporated by reference in the Registration
Statement and the Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the published rules and regulations thereunder; (II) any material
modifications should be made to the unaudited condensed consolidated
interim financial statements, incorporated by reference in the
Registration Statement and the Prospectus, for them to be in
conformity with generally accepted accounting principles; (III) for
purposes only of the letter to be received at the Closing Date, the
unaudited amounts for Operating Revenues, Operating Income, Net
Income, Earnings Available for Common Stock and Earnings per Average
Share of Common Stock for the twelve-month period ended June 30, 1994
and of Long-Term Debt, Preferred Stock, Common Stock Equity and Total
Capitalization as of June 30, 1994, referred to under the caption
"Consolidated Financial Information" in the Prospectus Supplement, (a)
do not agree with the unaudited financial statement furnished by the
Company for the same period or (b) were not determined on a basis
substantially consistent with that of corresponding amounts in the
audited financial statements incorporated by reference in the
Registration Statement, and (IV) on the basis of inquiries of certain
officials of the Company who have responsibilities for financial and
accounting matters and a reading of the minutes as stated above,
nothing has come to their attention which caused them to believe that
there was any change at the date of the latest available interim
financial data and at a specified date not more than five business
days prior to the date of delivery of such letter in the capital
stock, other than changes arising as a result of sales of Common Stock
under the Company's Dividend Reinvestment and Stock Purchase Plan and
Employee Savings Fund Plan, or long-term debt of the Company and its
consolidated subsidiaries as compared with amounts shown on the latest
balance sheet included or incorporated by reference in the
Registration Statement, or for the period from the date of the
Company's latest balance sheet included or incorporated by reference
in the Registration Statement to the end of the preceding calendar
month for which balance sheet data is available, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated operating revenues or net income, or any
decreases in unconsolidated capitalization, as compared with amounts
shown on the latest balance sheet included or incorporated by
reference in the Registration Statement, except in all instances for
changes or decreases which the Registration Statement discloses have
occurred or may occur. The letters of Price Waterhouse also shall be
to the effect that they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are derived from the
general accounting records of the Company, which appear or are
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Representatives, and have compared such
amounts, percentages and financial information with the accounting
records of the Company and have found them to be in agreement.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall
not have been any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 6 which makes it
impractical or inadvisable in the judgment of the Representatives to
proceed with the public offering or the delivery of the Securities as
contemplated by the Prospectus.
(g) Prior to the Closing Date, the Company shall furnish to the
Representatives such further information, certificates and documents
as they may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled at the Closing Date, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in
all material respects satisfactory in form and substance to the
Representatives and their counsel, this Agreement and all obligations of
the Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be
given to the Company in writing, or by telephone or telegraph confirmed in
writing.
7. Conditions of Company's Obligations. The obligations of the
Company to sell and deliver the Securities are subject to the following
conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, threatened.
(b) The PSC shall have granted authorization, and on the Closing
Date such authorization shall be in full force and effect, permitting
the issuance and sale of the Securities upon the terms and conditions
hereunder set forth or contemplated and containing no provision
unacceptable to the Company, and the Company shall have been advised
by the Director of Accounting and Finance of the PSC or his designee
that such authority is not to be abrogated.
(c) The Underwriters shall have furnished to the Company a
completed underwriters' questionnaire from each underwriter named in
Schedule II hereto in form and substance satisfactory to counsel for
the Company, which discloses no relationship between any such
underwriter or its directors, officers or partners, and the Company or
Marine Midland Bank, as trustee (the "Trustee") under the Indenture,
dated as of October 1, 1937, relating to the Company's First Mortgage
Bonds, or the directors, officers or partners of the Trustee, that
would require, in the opinion of such counsel, an amendment of the
Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 filed by the Trustee and disqualification of
the Trustee.
If any of the conditions specified in this Section 7 shall not
have been fulfilled at the Closing Date, this Agreement and all obligations
of the Company hereunder may be canceled on or at any time prior to the
Closing Date by the Company. Notice of such cancellation shall be given to
the Underwriters in writing or by telephone or telex or facsimile
transmission confirmed in writing.
8. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision
hereof, other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all out-
of-pocket expenses (including fees and disbursements of counsel not to
exceed $35,000) that shall have been reasonably incurred by them in
connection with the proposed purchase and sale of the Securities.
9. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in
any amendment thereof, or in the Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation thereof; and provided, further, that such indemnity with
respect to a prospectus included in the Registration Statement or any
amendment thereto prior to supplementing thereof with the Prospectus
Supplement shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus as amended
or supplemented (but without the documents incorporated by reference
therein) at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such
prospectus was corrected in the Prospectus as amended or supplemented.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to the Underwriters
but only with reference to written information furnished to the Company by
or on behalf of such Underwriter through the Representatives specifically
for use in the preparation of the documents referred to in the foregoing
indemnity, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect hereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the commencement thereof; but the omission to so notify the
indemnifying party will not relieve it from any liability that it may have
to any indemnified party otherwise than under this Section 9. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and, to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 9 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than
one separate counsel, approved by the Representatives in the case of
paragraph (a), representing the indemnified parties under paragraphs (a) or
(b), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). In any case to which an exception
set forth in (i), (ii) or (iii) above applies, the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) is
due in accordance with its terms but is for any reason unavailable from the
Company or insufficient to hold the Underwriters harmless in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, the Company and the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities (or actions in
respect thereof) to which the Company and the one or more of the
Underwriters may be subject, as a result of such losses, claims, damages or
liabilities (or actions in respect thereof), in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other equitable considerations,
including relative benefit. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one
hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters
with respect to the offering of the Securities, in each case as set forth
in the table on the cover page of the Prospectus Supplement.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this paragraph (d). The amount paid or
payable by a party entitled to contribution as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such party in connection with investigating
or defending any such action or claim. The Underwriters' obligations under
this paragraph (d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this paragraph
(d), each person, if any, who controls an Underwriter within the meaning of
either the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject to the fourth sentence of this paragraph (d).
10. Default by an Underwriter. If any one or more of
the Underwriters shall fail to purchase and pay for all of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder on the
Closing Date, and such failure to purchase shall constitute a default in
the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities to be purchased on such date, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any of, the Securities, and if such nondefaulting Underwriters do
not purchase all of the Securities, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company. In
the event of a default by any Underwriter, as set forth in this Section 10,
the Closing Date shall be postponed for such period, not exceeding seven
days, as the Representatives shall determine in order that the required
changes in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Nothing herein contained shall
relieve any defaulting Underwriter of its liability, if any, to the Company
or any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11. Termination. This Agreement shall be subject to termination
in the Representative's absolute discretion, by notice given to the Company
prior to delivery of and payment for all of the Securities, (a) if prior to
such time trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established, or (b) if a banking moratorium shall have been declared either
by Federal or New York State authorities, or (c) if trading in any
securities of the Company shall have been suspended or halted, or (d) if
there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets in the United States is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities.
12. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the any Underwriter
or the Company or any of its officers or directors or any controlling
person within the meaning of the Act, and will survive delivery of and
payment for the Securities. The provisions of Sections 5, 8 and 9 hereof
shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and, if sent to the Representatives, will be mailed, delivered or
transmitted by telex or facsimile transmission and confirmed to them at
their address set forth for that purpose in Schedule I hereto, or, if sent
to the Company, will be mailed, delivered or transmitted by telex or
facsimile transmission and confirmed to it at 300 Erie Boulevard West,
Syracuse, New York 13202, attention of Paul J. Kaleta, Vice President, Law
and General Counsel.
14. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9
hereof, and no other person will have any right or obligation hereunder.
15. Applicable Law. The Agreement will be governed by and
construed in accordance with the internal substantive laws of the State of
New York and not the choice of law rules of the State of New York.
16. Counterparts. This Agreement may be executed in
counterparts, all of which, taken together, shall constitute a single
agreement among the parties to such counterparts.
17. Authority of the Underwriters. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and
that the execution and delivery of this Agreement and any action under this
Agreement taken by such Representatives will be binding upon all
Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent a binding
agreement between the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
NIAGARA MOHAWK POWER CORPORATION
By:/s/ Arthur W. Roos
------------------
Name: Arthur W. Roos
Title: Vice President-Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
For themselves and as Representatives
of the several Underwriters, if any,
named in Schedule II hereto.
By Goldman, Sachs & Co.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Lehman Brothers Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
By Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co.
- ------------------------
SCHEDULE I
__________
Underwriting Agreement dated August 1, 1994.
Representatives and Address:
Goldman, Sachs & Co.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Lehman Brothers Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
c/o: Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
Closing Date and Location: August 8, 1994
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
SCHEDULE II
Number of Shares
Name of Underwriter to be Purchased
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . 550,500
Dean Witter Reynolds Inc. . . . . . . . . . . . . . . . . . . . . 550,500
A.G. Edwards & Sons, Inc. . . . . . . . . . . . . . . . . . . . . 550,500
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . 550,500
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . . . 550,500
Prudential Securities Incorporated . . . . . . . . . . . . . . . . 550,500
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . . 550,500
Bear, Stearns & Co. Inc. . . . . . . . . . . . . . . . . . . . . . 88,500
CS First Boston Corporation . . . . . . . . . . . . . . . . . . . . 88,500
Alex. Brown & Sons Incorporated . . . . . . . . . . . . . . . . . . 88,500
Dillon, Read & Co. Inc. . . . . . . . . . . . . . . . . . . . . . 88,500
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . . . 88,500
Kidder, Peabody & Co. Incorporated . . . . . . . . . . . . . . . . 88,500
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . 88,500
Oppenheimer & Co., Inc. . . . . . . . . . . . . . . . . . . . . . 88,500
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . 88,500
Advest, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,500
J.C. Bradford & Co. . . . . . . . . . . . . . . . . . . . . . . . 37,500
JW Charles Securities, Inc. . . . . . . . . . . . . . . . . . . . 37,500
Commerzbank Capital Markets Corporation . . . . . . . . . . . . . 37,500
Cowen & Company . . . . . . . . . . . . . . . . . . . . . . . . . 37,500
Credit Lyonnais Securities (USA) Inc. . . . . . . . . . . . . . . 37,500
Crowell, Weedon & Co. . . . . . . . . . . . . . . . . . . . . . . 37,500
Dain Bosworth Incorporated . . . . . . . . . . . . . . . . . . . . 37,500
Davenport & Co. of Virginia, Inc. . . . . . . . . . . . . . . . . 37,500
Doft & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 37,500
Fahnestock & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . 37,500
First Albany Corporation . . . . . . . . . . . . . . . . . . . . . 37,500
Furman Selz Incorporated . . . . . . . . . . . . . . . . . . . . . 37,500
Gruntal & Co., Incorporated . . . . . . . . . . . . . . . . . . . . 37,500
J.J.B. Hilliard, W.L. Lyons, Inc. . . . . . . . . . . . . . . . . 37,500
Interstate/Johnson Lane Corporation . . . . . . . . . . . . . . . . 37,500
Janney Montgomery Scott Inc. . . . . . . . . . . . . . . . . . . . 37,500
Josephthal Lyon & Ross Incorporated . . . . . . . . . . . . . . . . 37,500
Legg Mason Wood Walker Incorporated . . . . . . . . . . . . . . . . 37,500
McDonald & Company Securities, Inc. . . . . . . . . . . . . . . . 37,500
McGinn, Smith & Co., Inc. . . . . . . . . . . . . . . . . . . . . 37,500
Morgan Keegan & Company, Inc. . . . . . . . . . . . . . . . . . . 37,500
The Ohio Company . . . . . . . . . . . . . . . . . . . . . . . . . 37,500
Olde Discount Corporation . . . . . . . . . . . . . . . . . . . . . 37,500
Parker/Hunter Incorporated . . . . . . . . . . . . . . . . . . . . 37,500
Piper Jaffray Inc. . . . . . . . . . . . . . . . . . . . . . . . . 37,500
Pryor, McClendon, Counts & Co., Inc. . . . . . . . . . . . . . . . 37,500
Rauscher Pierce Refsnes, Inc. . . . . . . . . . . . . . . . . . . 37,500
Raymond James & Associates, Inc. . . . . . . . . . . . . . . . . . 37,500
Redwood Securities Group, Inc. . . . . . . . . . . . . . . . . . . 37,500
The Robinson-Humphrey Company, Inc. . . . . . . . . . . . . . . . 37,500
Rodman & Renshaw, Inc. . . . . . . . . . . . . . . . . . . . . . . 37,500
Muriel Siebert & Co., Inc. . . . . . . . . . . . . . . . . . . . . 37,500
Stifel, Nicolaus & Company, Incorporated . . . . . . . . . . . . . 37,500
Sturdivant & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . 37,500
Wheat, First Securities, Inc. . . . . . . . . . . . . . . . . . 37,500
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,000,000
