Document/Exhibit Description Pages Size
1: 8-K Wisconsin Energy Corporation 9 34K
2: EX-2.1 Agreement and Plan of Merger 84 331K
3: EX-2.2 Wec Stock Option Agreement 18 79K
4: EX-2.3 Nsp Stock Option Agreement 18 78K
5: EX-2.4 Committees of the Board of Directors of Primergy 1 6K
6: EX-2.5 Form of Employment Agreement of James J. Howard 30 66K
7: EX-2.6 Form of Employment Agreement of Richard A. Abdoo 27 63K
8: EX-2.7 Amended and Restated Articles of Northern Power 37 124K
Wis Corp
9: EX-99.1 Wec Press Release 5 22K
EX-2.7 — Amended and Restated Articles of Northern Power Wis Corp
Exhibit Table of Contents
Exhibit (2)-7
Exhibit 7.20(b)
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
NORTHERN POWER WISCONSIN CORP.
(a Wisconsin corporation)
These Restated Articles of Incorporation supersede and
take the place of the existing Articles of Incorporation and all
prior amendments thereto and restatements thereof.
ARTICLE I. NAME, REGISTERED OFFICE AND AGENT
The name of this corporation shall be NORTHERN POWER
WISCONSIN CORP. At the time of the adoption of these Articles,
the address of the registered office of the Corporation is 44
East Mifflin Street, Madison, Wisconsin 53703 and its registered
agent at such address is C T CORPORATION SYSTEM.
ARTICLE II. PURPOSE
The corporation is organized to engage in any lawful
activity within the purposes for which a corporation may be
organized under the WBCL, including but not limited to acquiring,
maintaining and operating facilities by or through which the
corporation can provide communication, transportation, water,
light, heat, or power to the public and to acquire and hold
rights and franchises for the occupation and use of property for
providing public utility services.
ARTICLE III. DURATION
The period of duration of this Corporation shall be
perpetual.
ARTICLE IV. DIRECTORS
1. Board of Directors
The management of this Corporation shall be vested in a
Board of Directors composed of not less than three (3) and not
more than seventeen (17) members, who shall be elected by the
stockholders of the Corporation in the manner provided by the
Bylaws. It shall not be necessary that directors be stockholders
in the Corporation. The number of directors shall be fixed from
time to time by the Bylaws, and such number may be increased or
decreased within the above limits in such manner as may be
provided by the Bylaws. Vacancies in the Board caused by an
increase in the number of directors or by death,
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resignation, disqualification, or other cause, may be filled by
the remaining directors or by the stockholders at an annual or
special meeting, as may be provided by the Bylaws.
ARTICLE V. DESCRIPTION OF CAPITAL STOCK
The total authorized number of shares that may be
issued by the Corporation and that the Corporation will hence-
forth be authorized to have is one hundred sixty-seven million
(167,000,000) of the par value per share hereinafter set forth.
A description of the classes of shares and a statement
of the number of shares in each class and the relative rights,
voting power, and preferences granted to and restrictions imposed
upon the shares of each class are as follows:
1. Authorized Number and Classes of Shares.
Such shares shall be divided into two classes to be
designated, respectively, Preferred Stock and Common Stock. The
total authorized number of shares of Preferred Stock is seven
million (7,000,000) having a par value of one hundred dollars
($100) per share, and the total authorized number of shares of
Common Stock is one hundred sixty million (160,000,000) having a
par value of two dollars and fifty cents ($2.50) per share.
2. Issuance and Terms of Preferred Stock
The Preferred Stock may be issued in series, each of
which series shall have such distinctive designation as may be
fixed by the Board of Directors prior to the issuance or al-
lotment of any share of such series, provided that such des-
ignation shall in each case include the words "Preferred Stock".
The Board of Directors is hereby authorized, within the
limitations and restrictions hereinafter stated and within the
limits of the WBCL, to fix from time to time, in respect of
shares of Preferred Stock at the time unallotted, the dividend
rates and times of payment, the redemption price, and liquidation
price or preference as to assets in voluntary liquidation of the
shares of any series of Preferred Stock (except the series
designated "Cumulative Preferred Stock, $3.60 Series," in respect
of which such provisions are hereinafter set forth) and the
number of shares constituting any series of Preferred Stock.
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3. Preferences of Preferred Stock
a. Dividends
The holders of shares of Preferred Stock, irrespective
of the series thereof, shall be entitled to receive in preference
to the Common Stock, when and as declared by the Board of
Directors of the Corporation, out of its net earnings or surplus,
cumulative dividends at such rate as shall have been fixed for
the series of which such shares are a part, and no more, payable
to shareholders of record on such dates and for such dividend
periods as shall be fixed by the Board of Directors of the
Corporation. So long as dividends are in default in whole or in
part on a series of Preferred Stock for any prior dividend period
for such series of Preferred Stock, any dividends on the
Preferred Stock shall be divided among the outstanding series of
Preferred Stock for which dividends are accumulated and unpaid
for any prior dividend period applicable thereto in proportion to
the aggregate amounts that then would be distributable to the
holders of Preferred Stock of each such series if all dividends
accumulated thereon and unpaid for all prior dividend periods
applicable thereto were paid and declared thereon. Dividends on
each share of Preferred Stock shall begin to accrue on the first
day of the dividend period during which the original issue of a
certificate for such share shall occur; provided, however, that,
in the case of any series of Preferred Stock issued in exchange
for a series of preferred stock, par value $2.50 per share of
Northern States Power Company, a Minnesota corporation, which was
created after May 6, 1970, the Board of Directors, in its
discretion, may fix the date of original issue of the shares of
such series as the date from which dividends shall accrue.
b Liquidation and Dissolution
In the event of any distribution of assets of the
Corporation other than by dividends from net earnings or surplus,
whether upon voluntary liquidation or dissolution or upon
involuntary liquidation or dissolution of the Corporation, the
holders of the shares of Preferred Stock shall be entitled, in
preference to the Common Stock, to one hundred dollars ($100) per
share in the case of involuntary liquidation or dissolution and
to such amount per share in the case of voluntary liquidation or
dissolution (which may differ from that payable in involuntary
liquidation or dissolution) as shall have been fixed by the Board
of Directors for the shares of the series of which they are a
part, plus in each case an amount equal to all dividends
accumulated and unpaid thereon, and no more. The consolidation
or merger of this Corporation with or into any other
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corporation or corporations shall not be deemed to be distri-
bution of assets or liquidation or dissolution of the Corporation
within the meaning of any provisions hereof.
If upon any such distribution of assets of the Cor-
poration the assets distributable among the holders of the
Preferred Stock of all series shall be insufficient to pay in
full the amounts to which the holders of Preferred Stock of all
series are entitled under the foregoing provisions, the amount
distributable to the holders of all shares of Preferred Stock of
all series shall be apportioned among them ratably in proportion
to the amounts to which they are, respectively, entitled in
accordance with such foregoing provisions.
c. Dividend Arrearages
Dividends may be paid upon the Common Stock only when
dividends have been paid, or declared and set apart for payment
in full, on the Preferred Stock of all series from the date on
which dividends thereon began to accrue to the beginning of the
current dividend periods, but whenever all such dividends have
been paid, or declared and funds set apart for the payment
thereof in full, upon the Preferred Stock of all series then
dividends upon the Common Stock may be declared, payable then or
thereafter out of any net earnings or surplus then remaining.
The holders of Preferred Stock shall not be entitled to receive
any amounts upon any distribution of the assets of the
Corporation other than by dividends from net earnings or surplus
in excess of the amount to which they are, respectively, entitled
in accordance with the foregoing provisions hereof, but after the
payment of such amounts in accordance with the provisions
hereinabove set forth, the holders of Common Stock, subject to
the rights of holders of stock of any other class hereafter
authorized, shall receive all further amounts in distribution of
such assets of the Corporation.
4. Redemption of Preferred Stock
The Corporation, at its option, may at any time and
from time to time redeem the whole or any part of the Preferred
Stock of any series or all series, upon at least thirty days'
previous notice by mail or publication given to the holders of
record of the shares to be redeemed or upon such other period and
form of notice as shall be fixed by the Board of Directors in the
resolution establishing such series, by paying for each share to
be redeemed the redemption price which shall have been fixed, as
herein provided, for the shares of the series of which it is a
part plus in each case an amount equal to the dividends upon such
shares so to be redeemed at the rate or rates fixed with respect
to such shares from the date or dates
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on which dividends on such shares began to accrue to the date
fixed for the redemption thereof less the amount of dividends
theretofore paid thereon, such payment to be made only on pre-
sentation and surrender for cancellation of the certificate or
certificates representing the share or shares so called for
redemption properly endorsed or assigned by the owner of record
thereof. If less than all the outstanding shares of the Pre-
ferred Stock are to be redeemed, the shares to be redeemed shall
be determined by the Board of Directors of the Corporation,
either by lot, or by redemption pro rata, as the Board of
Directors see fit. If the notice of redemption hereinabove
provided for shall have been given as hereinabove provided and if
on or before the redemption date specified in such notice funds
necessary for the redemption of the share or shares to be
redeemed shall have been set apart, as a trust fund, so as to be
available therefor, then notwithstanding that any certificate for
the shares of Preferred Stock so to be redeemed shall not have
been surrendered for cancellation, the shares represented thereby
from and after the date of redemption so specified shall no
longer be deemed outstanding and the right to receive dividends
thereon shall cease to accrue and all rights of the holders of
the shares to be redeemed as shareholders of the Corporation,
except the right to receive the redemption price without interest
upon endorsement and surrender of the certificates for said
shares so redeemed, shall cease and terminate.
5. Voting Rights
a. Number of Votes
The holders of the Preferred Stock (other than Pre-
ferred Stock of the series designated "Cumulative Preferred
Stock, $3.60 Series") shall be entitled to one vote for each
share thereof held by them, the holders of Preferred Stock
heretofore or hereafter issued of the series designated "Cumu-
lative Preferred Stock, $3.60 Series" shall be entitled to three
votes for each share thereof held by them, and the holders of the
Common Stock shall be entitled to one vote for each share thereof
held by them; provided, however, that:
(i) If and when dividends payable on the Pre-
ferred Stock of any series at the time outstanding are
in default in an amount equivalent to the amount
payable thereon during the immediately preceding twelve
month period, and until such default shall have been
remedied as hereinafter provided, the preferred share-
holders, voting as a class and without regard to
series, shall be entitled to elect the smallest number
of directors necessary to constitute
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a majority of the full Board of Directors, and the
common shareholders, voting separately as a class,
shall be entitled to elect the remaining directors of
the Corporation. Upon accrual of such special right of
the Preferred Stock, a meeting of the preferred and the
common shareholders for the election of directors shall
be held upon notice promptly given as provided in the
Bylaws for a special meeting by the President or the
Secretary of the Corporation. If within fifteen days
after the accrual of such special right of the
Preferred Stock the President and the Secretary of the
Corporation shall fail to call such meeting, then such
meeting shall be held upon notice, as provided in the
Bylaws for a special meeting, given by the holders of
not less than 1,000 shares of the Preferred Stock after
filing with the Corporation of notice of their
intention to do so. The terms of office of all persons
who may be directors of the Corporation at the time
shall terminate upon the election of a majority of the
Board of Directors by the preferred shareholders,
whether or not the common shareholders shall at the
time of such termination have elected the remaining
directors of the Corporation; thereafter during the
continuance of such special right of the Preferred
Stock to elect a majority of the Board of Directors,
the holders of such stock, voting as a class, shall be
entitled to elect a majority of the Board of Directors
and the holders of the Common Stock, voting separately
as a class, shall be entitled to elect the remaining
directors of the corporation; and all directors so
elected, whether at such special meeting or any
adjournment thereof, or at any subsequent annual
meeting for the election of directors, held during the
continuance of such special right, shall hold office
until the next succeeding annual election and until
their respective successors, elected by the preferred
shareholders, voting as a class, and the common
shareholders, voting as a class, are elected and
qualified, unless their terms of office shall be sooner
terminated as hereinafter provided. However, if and
when all dividends then in default on the Preferred
Stock shall thereafter be paid (and such dividends
shall be declared and paid out of any funds legally
available therefor as soon as reasonably practicable),
the Preferred Stock shall thereupon be divested of such
special right herein provided for to elect a majority
of the Board of Directors, but subject always to the
same provisions for the vesting of such special right
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in such stock in the case of any similar future default
or defaults, and the election of directors by the
preferred and common shareholders, voting without
regard to class, shall take place at the next suc-
ceeding annual meeting for the election of directors,
or at any adjournment thereof. The terms of office of
all persons who may be directors of the Corporation at
the time of such divestment shall terminate upon the
election of the directors at such annual meeting or
adjournment thereof.
b. First Meeting for Election of Directors
At the first meeting for the election of directors
after any accrual of the special right of the preferred share-
holders to elect a majority of the Board of Directors, as pro-
vided above, and at any subsequent annual meeting for the
election of directors held during the continuance of such special
right, the presence in person or by proxy of the holders of
record of a majority of the outstanding shares of Preferred Stock
without regard to series shall be necessary to constitute a
quorum for the election of the directors whom the preferred
shareholders are entitled to elect, and the presence in person or
by proxy of the holders of record of a majority of the out-
standing shares of Common Stock shall be necessary to constitute
a quorum for the election of the directors whom the common
shareholders are entitled to elect. If at any such meeting there
shall not be such a quorum of the preferred shareholders, the
meeting shall be adjourned from time to time without notice other
than announcement at the meeting until such quorum shall have
been obtained; provided that, if such quorum shall not have been
obtained within ninety (90) days from the date of such meeting as
originally called (or, in the case of any annual meeting held
during the continuance of such special right, from the date for
such annual meeting), the presence in person or by proxy of the
holders of record of one-third of the outstanding shares of the
Preferred Stock, without regard to series, shall then be
sufficient to constitute a quorum for the election of the
directors whom such shareholders are then entitled to elect. The
absence of a quorum of the preferred shareholders as a class or
of the common shareholders as a class shall not, except as
hereinafter provided for, prevent or invalidate the election by
the other class of shareholders of the directors whom they are
entitled to elect, if the necessary quorum of shareholders of
such other class is present in person or represented by proxy at
any such meeting or any adjournment thereof. However, at the
first meeting for the election of directors after any accrual of
the special right of the preferred shareholders to elect a
majority of the Board of Directors, the absence of a quorum of
the preferred shareholders
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shall prevent the election of directors by the common share-
holders, until a quorum of the preferred shareholders shall be
obtained.
c. Cumulative Voting
The holders of shares of stock of any class entitled to
vote at a meeting for the election of directors shall have the
right to cumulate their votes at such election in the manner
provided by the WBCL.
6. Special Voting Rights of Preferred Stock
a. Act Requiring Majority Vote of Preferred Stock
So long as any of the Preferred Stock is outstanding,
the Corporation shall not, without the consent (given in writing
or by vote at a meeting duly called for the purpose in accordance
with the provisions of the Bylaws) of the holders of a majority
of the total number of shares of such stock, without regard to
series, present or represented by proxy at such meeting, at which
meeting a quorum as hereinafter provided shall be present or
represented by proxy;
(i) Issue any unsecured notes, debentures, or
other securities representing unsecured indebtedness,
or assume any such unsecured securities, for purposes
other than the refunding of outstanding unsecured
securities theretofore issued or assumed by the Cor-
poration or the redemption or other retirement of
outstanding shares of one or more series of the Pre-
ferred Stock, if, immediately after such issue or
assumption, the total principal amount of all unsecured
notes, debentures, or other securities representing
unsecured indebtedness issued or assumed by the
Corporation and then outstanding (including unsecured
securities then to be issued or assumed) would exceed
twenty percent (20%) of the aggregate of (a) the total
principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by
the Corporation and then to be outstanding, and (b) the
capital and surplus of the Corporation (including all
earned surplus, paid-in surplus, capital surplus, or
other surplus of the Corporation) as then to be stated
on the books of account of the Corporation; or
(ii) merge or consolidate with or into any other
corporation or corporations, unless such merger or
consolidation, or the issuance of assumption of all
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securities to be issued or assumed in connection with
any such merger or consolidation, shall have been
ordered, approved, or permitted by the Securities and
Exchange Commission under the provisions of the Public
Utility Holding Company Act of 1935 or by any successor
commission or regulatory authority of the United States
of America having jurisdiction in the premises;
provided that the provisions of this clause (ii) shall
not apply to a purchase or other acquisition by the
Corporation of the franchises or other assets of
another corporation, or otherwise apply in any matter
which does not involve a merger or consolidation.
b. Quorum of Preferred Stockholders
For the purpose of this Section 6, the presence in
person or by proxy of the holders or record of a majority of the
outstanding shares of Preferred Stock, without regard to series,
shall be necessary to constitute a quorum; provided, that if such
quorum shall not have been obtained at such meeting or at any
adjournment thereof within thirty (30) days from the date of such
meeting as originally called, the presence in person or by proxy
of the holders of record of one-third (1/3) of the outstanding
shares of such stock, without regard to series, shall then be
sufficient to constitute a quorum; and provided further that in
the absence of a quorum, such meeting or any adjournment thereof
may be adjourned from time to time by the officer or officers of
the Corporation who shall have called the meeting (but at
intervals of not less than seven days unless all shareholders
present or represented by proxy shall agree to a shorter
interval) without notice other than announcement at the meeting
until a quorum as above provided shall be obtained.
c. Acts which Include Redemption of Preferred Stock
No vote or consent of the holders of any series of the
Preferred Stock shall be required, however, if, at or prior to
the issue of any such securities representing unsecured in-
debtedness, or such consolidation, merger, or sale, provision is
made for the redemption or other retirement of all shares of such
series then outstanding.
d. Additional to Other Voting Requirements
The provisions set forth in this Section 6 are in
addition to any other vote required by any provision of the
Articles of Incorporation of the Corporation, as amended, or
applicable statute, and shall be so construed.
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7. Issuance in Amount of Preferred Stock
So long as any of the Preferred Stock is outstanding,
the Corporation shall not, without the consent (given by vote at
a meeting duly called for the purpose in accordance with the
provisions of the Bylaws) of the holders of a majority of the
total number of shares of such stock then outstanding, without
regard to class or series, present or represented by proxy at
such meeting, increase the total authorized amount of Preferred
Stock (other than as authorized by this Article V) or authorize
any other preferred stock ranking on a parity with the Preferred
Stock as to assets or dividends (other than through the
reclassification of then authorized but unissued shares of
Preferred Stock into shares of such other preferred stock).
8. Issuance of Stock Preferred over Preferred Stock
So long as any of the Preferred Stock is outstanding,
the Corporation shall not, without the consent (given by vote at
a meeting duly called for the purpose in accordance with the
provisions of the Bylaws) of the holders of at least sixty-six
and two-thirds per cent (66-2/3%) of the total number of shares
of Preferred Stock, without regard to series, then outstanding,
present or represented by proxy at such meeting, authorize any
class of stock which shall be preferred as to assets or dividends
over the Preferred Stock; or, without the consent of the holders
of at least sixty-six and two-thirds percent (66-2/3%) of the
total number of shares of Preferred Stock then outstanding, given
as above provided in this Section 8, amend the Articles of
Incorporation, to change the express terms and provisions of the
Preferred Stock in any manner substantially prejudicial to the
holders thereof.
9. Effecting and Validating Additional Stock or Securities
Convertible into Stock
So long as any shares of Preferred Stock are out-
standing, the consent of the holders of at least two-thirds (2/3)
of the Preferred Stock at the time outstanding, voting as a class
and without regard to series, given in person or by proxy, either
in writing or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating the issue of any
additional shares of Preferred Stock (other than and not
exceeding 275,000 shares of the Cumulative Preferred Stock, $3.60
Series), or any shares of stock, or of any security convertible
into stock, of any class ranking on a parity with the Preferred
Stock, unless
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(i) the net income of the Corporation (deter-
mined as hereinafter provided) for any twelve con-
secutive calendar months within the fifteen calendar
months immediately preceding the month within which
the issuance of such additional shares is authorized
by the Board of Directors of the Corporation shall
have been in the aggregate not less than one and
one-half times the sum of the interest requirements
for one year on all of the indebtedness of the
Corporation to be outstanding at the date of such
proposed issue and the full dividend requirements
for one year on all shares of Preferred Stock, and
all other stock, if any, ranking prior to or on a
parity with the Preferred Stock, to be outstanding
at the date of such proposed issue, including the
shares then proposed to be issued but excluding any
such indebtedness and any such shares proposed to be
retired in connection with such proposed issue. For
purposes of calculating the dividend requirements
for one year applicable to any series of Preferred
Stock proposed to be issued which will have
dividends determined according to an adjustable,
floating or variable rate, the dividend rate used
shall be the higher of (A) the dividend rate
applicable to such series of Preferred Stock on the
date of such calculation, or (B) the average
dividend rate payable on all series of Preferred
Stock outstanding during the twelve month period
immediately preceding the date of such calculation.
For purposes of calculating the dividend or interest
requirements for one year applicable to any series
of Preferred Stock or indebtedness outstanding at
the date of such proposed issue and having dividends
or interest determined according to an adjustable,
floating or variable rate, the dividend or interest
rate used shall be: (A) if such series of Preferred
Stock or indebtedness has been outstanding for at
least twelve months, the actual amount of dividends
or interest paid on account of such series of
Preferred Stock or indebtedness for the twelve month
period immediately preceding the date of such
calculation, or (B) if such series of Preferred
Stock or indebtedness has been outstanding for less
than twelve months, the higher of (1) the dividend
or interest rate applicable to such series of
Preferred Stock or indebtedness on the date of such
calculation or (2) the average dividend or interest
rate payable on all series of Preferred Stock or
indebtedness outstanding during the twelve month
period immediately preceding the date of such calcu-
lation. "Net income" for any period for the purpose
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of this Section 9 shall be computed by adding to the
net income of the Corporation for said period, de-
termined in accordance with generally accepted ac-
counting practices, as adjusted by action of the Board
of Directors of the Corporation as hereinafter
provided, the amount deducted for interest before
arriving at such net income (adjusted as above pro-
vided). In determining such net income for any period,
there shall be deducted the provisions for depreciation
and depletion as recorded on such books or the minimum
amount required therefor under the provisions of any
then existing trust indenture or supplements thereto of
the Corporation, whichever is larger. In the
determination of such net income, the Board of
Directors of the Corporation may, in the exercise of
due discretion, make adjustments by way of increase or
decrease in such net income to give effect to changes
therein resulting from any acquisition of properties or
to any redemption, acquisition, purchase, sale, or
exchange of securities by the Corporation either prior
to the issuance of any shares of Preferred Stock, or
stock, or securities convertible into stock, ranking on
a parity therewith then to be issued or in connection
therewith; and
(ii) the aggregate of the capital of the Corpo-
ration applicable to all stock of any class ranking
junior to the Preferred Stock, plus the surplus of the
Corporation, shall be not less than the aggregate
amount payable upon involuntary liquidation, dis-
solution, or winding up of the affairs of the Corpo-
ration to the holders of all shares of Preferred Stock
and of any shares of stock of any class ranking on a
parity therewith to be outstanding immediately after
such proposed issue, excluding from such computation
all indebtedness and stock to be retired through such
proposed issue. No portion of the surplus of the
Corporation utilized to satisfy the foregoing
requirements shall be available for dividends (other
than dividends payable in stock of any class ranking
junior to the Preferred Stock) or other distributions
upon or in respect of shares of stock of the
Corporation of any class ranking junior to the
Preferred Stock for the purchase of shares of such
junior stock until such number of additional shares of
Preferred Stock or of stock, or securities convertible
into stock, ranking on a parity with the Preferred
Stocks are retired or until and to the extent that the
capital applicable to such junior stock shall have been
increased.
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10. Dividends on Common Stock
So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not pay any dividends on
its Common Stock (other than dividends payable in Common
Stock) or make any distribution on or purchase or otherwise
acquire for value any of its Common Stock (each such payment,
distribution, purchase and/or acquisition being herein
referred to as a "Common Stock dividend"), except to the
extent permitted by the following provisions of this Section
10.
a. No Common Stock dividend shall be declared or paid
in an amount which, together with all other Common Stock
dividends declared in the year ending on (and including)
the date of the declaration of such Common Stock
dividend, would in the aggregate exceed fifty per cent
(50%) of the net income of the Corporation for the period
consisting of the twelve consecutive calendar months
ending on the last day of the second calendar month next
preceding the declaration of such Common Stock dividend
after deducting from such net income, dividends accruing
on any preferred stock of the Corporation during such
period, if at the end of such period the ratio (herein
referred to as the "capitalization ratio") of the sum of
(1) the capital represented by the Common Stock
(including premiums on capital stock) and (2) the surplus
accounts, of the Corporation, to the sum of (1) the total
capital and (2) the surplus accounts, of the Corporation
(after adjustment of the surplus accounts to reflect
payment of such Common Stock dividend) would be less than
twenty per cent (20%).
b. If such capitalization ratio, determined as
aforesaid shall be twenty per cent (20%) or more, but
less than twenty-five per cent (25%) no Common Stock
dividend shall be declared or paid in an amount which,
together with all other Common Stock dividends declared
in the year ending on [and including] the date of the
declaration of such Common Stock dividend, would in the
aggregate exceed seventy-five per cent (75%) of the net
income of the Corporation for the period consisting of
the twelve consecutive calendar months ending on the last
day of the second calendar month next preceding the
declaration of such Common Stock dividend after deducting
from such net income, dividends accruing on any preferred
stock of the Corporation during such period; and
c. If such capitalization ratio, determined as afore-
said, shall be in excess of twenty-five per cent (25%),
no Common Stock dividend shall be declared or paid which
would reduce such capitalization ratio to less than
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twenty-five per cent (25%) except to the extent permitted
by the next preceding paragraphs (a) and (b) hereof. For
the purpose of this condition:
(i) The total capital of the Corporation shall
be deemed to consist of the aggregate of (1) the
principal amount of all outstanding indebtedness of
the Corporation maturing more than one year after
the date of issue thereof and (2) the par value of
or the stated capital applicable to all outstanding
capital stock (including premiums on capital stock)
of all classes of the Corporation. All indebtedness
and capital stock owned by the Corporation shall be
excluded in determining total capital. Surplus ac-
counts shall be deemed to include all earned
surplus, paid-in surplus, capital surplus, or any
other surplus of the Corporation.
(ii) Such surplus accounts upon which capitali-
zation ratios are computed shall be adjusted to
eliminate (1) the amount, if any, by which fifteen
per cent (15%) of the gross operating revenues of
the Corporation (calculated in the manner provided
in the covenants relating to payment of Common Stock
dividends embodied in the indentures and
supplemental indentures securing the mortgage bonds
of the Corporation) for the entire period from
July 1, 1946, to the end of the second calendar
month immediately preceding the date of the proposed
payment of Common Stock dividends exceeds the total
amount expended by the Corporation during such
period for maintenance and repairs and the total
provision made by the Corporation during such period
for depreciation, all as shown by the books of the
Corporation, and (2) any amounts on the books of the
Corporation known or estimated, if not known, to
represent the excess, if any, of recorded value over
original cost of used and useful utility plant and
other property, and any item set forth on the asset
side of the balance sheet of the Corporation as a
result of accounting convention, such as unamortized
debt discount and expense, capital stock discount
and expense, and the excess, if any, of the
aggregate amount payable on involuntary dissolution,
liquidation, or winding up of the Corporation upon
all outstanding shares of preferred stock of all
series over the aggregate stated or par value of
such shares, unless any such amount or item, as the
case may be, is being amortized or is being provided
for by a reserve; and
-14-
(iii) In computing net income of the Corporation
applicable to the Common Stock of the Corporation
for any particular twelve (12) months' period for
the purposes of this condition, operating expenses,
among other things, shall include the greater of (1)
the provision for depreciation for such period as
recorded on the books of the Corporation or (2) the
amount by which fifteen percent (15%) of the gross
operating revenues of the Corporation for such
period (calculated in the manner provided in the
above mentioned covenants relating to payment of
Common Stock dividends) exceeds the total amount
expended by the Corporation during such periods for
maintenance and repairs as shown by the books of the
Corporation.
11. Acceptance of Shares
In consideration of the issue by the Corporation,
and the acceptance by the holders thereof, of shares of the
capital stock of the Corporation, each and every present and
future holder of shares of the Preferred Stock, the Common
Stock and of any stock hereafter authorized by the Corporation
shall be conclusively deemed, by acquiring or holding such
shares, to have expressly consented to all and singular the
terms and provisions of this Article V and to have agreed that
the voting rights of such holder and the restrictions and
qualifications thereof shall be as set forth in this Article.
12. Outstanding Stock or Evidence of Indebtedness
No share of stock or evidence of indebtedness shall
be deemed to be "outstanding," as that term is used in this
Article V, if, prior to or concurrently with the event in ref-
erence to which a determination as to the amount thereof out-
standing is to be made, the requisite funds for the redemption
thereof shall be deposited in trust for that purpose and the
requisite notice for the redemption thereof shall be given or
the depositary of such funds shall be irrevocably authorized
and directed to give or complete such notice of redemption.
13. Right of Unissued Stock or Other Securities
No holder of any stock of the Corporation shall be
entitled, as of right, to purchase or subscribe for any part
of any unissued shares of stock of the Corporation or for any
additional shares of stock, of any class or series, which may
at any time be issued, whether now or hereafter authorized, or
for any rights, options, or warrants to purchase or receive
shares of stock or for any bonds, certificates of
indebtedness, debentures, or other securities convertible into
shares of stock,
-15-
or any class or series thereof; but any such unissued or addi-
tional shares, rights, options, or warrants or convertible se-
curities of the Corporation may, from time to time, be issued
and disposed of by the Board of Directors to such persons,
firms, corporations, or associations, and upon such terms, as
the Board of Directors may, in its discretion, determine,
without offering any part thereof to any shareholders of any
class or series then of record; and any shares, rights,
options or warrants or convertible securities which the Board
of Directors may at any time determine to offer to
shareholders for subscription may be offered to holders of
shares of any class or series at the time existing, to the
exclusion of holders of shares of any or all other classes or
series at the time existing, in each case as the Board of
Directors may, in its discretion, determine.
14. Series of Preferred Stock
a. Cumulative Preferred Stock, $3.60 Series
Anything herein to the contrary notwithstanding,
there shall be and is hereby created a series of preferred
stock which is hereby designated "Cumulative Preferred Stock,
$3.60 Series," dividends on which shares of Cumulative Prefer-
red Stock, $3.60 Series, shall be payable, if declared, on the
15th days of January, April, July and October of each year;
which dividends shall be cumulative from the first day of the
respective quarter-yearly period in which the respective
shares of such series shall have been originally issued, the
term "quarter-yearly period" as used herein referred to the
period from July 1, 1946, to and including September 30, 1946,
and thereafter to each quarterly-yearly period of three (3)
consecutive months, beginning with October 1, 1946; the
dividend rate of which series is hereby fixed at Three Dollars
and Sixty Cents ($3.60) per share per annum; the redemption
price of the shares of which series is hereby fixed at One
Hundred and Five Dollars and Seventy-Five Cents ($105.75) per
share in case of redemption on or prior to September 30, 1951;
One Hundred and Four Dollars and Seventy-Five Cents ($104.75)
per share in case of redemption subsequent to September 30,
1951, and on or prior to September 30, 1956; and One Hundred
and Three Dollars and Seventy-Five Cents ($103.75) per share
in case of redemption subsequent to September 30, 1956, in
each case plus the amount payable thereon in accordance with
the provisions hereof equal to the cumulative dividends
accrued and unpaid thereon; the amount which the shares of
such series are entitled to receive in preference to the
Common Stock upon any distribution of assets other than by
dividends from net earnings or surplus upon voluntary
liquidation or dissolution of the Corporation is hereby fixed
at the then redemption price thereof, plus the
-16-
amount payable thereon in accordance with the provisions
hereof equal to the cumulative dividends accrued and unpaid
thereon; the amount which the shares of such series are
entitled to receive in preference to the Common Stock upon any
distribution of assets, other than by dividends from net
earnings or surplus, upon any involuntary liquidation or
dissolution of the Corporation is hereby fixed at One Hundred
Dollars ($100) Dollars per share, plus the amount payable
thereon in accordance with the provisions hereof equal to the
cumulative dividends accrued and unpaid thereon.
b. Cumulative Preferred Stock, $4.10 Series
(i) There be and there hereby is created from
the authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.10 Series," and the
number of shares constituting said new series is
hereby fixed at 175,000 shares.
(ii) The dividend rate of the shares of said
new series is hereby fixed at $4.10 per share per
annum; dividends on said shares shall be payable on
the 15th day of January, April, July and October for
the quarter-yearly period ending with the last day
of the preceding month, when and as declared by the
Board of Directors.
(iii) The redemption price of the shares of said
new series is hereby fixed at $105.50 per share in
case of redemption on or prior to December 31, 1955;
$104.50 per share in case of redemption subsequent
to December 31, 1955 and on or prior to December 31,
1960; $103.50 per share in case of redemption subse-
quent to December 31, 1960 and on or prior to Decem-
ber 31, 1965; and $102.50 per share in case of re-
demption subsequent to December 31, 1965; plus in
each case an amount equal to the dividends at the
rate of $4.10 per share per annum from the date div-
idends on the shares to be redeemed began to accrue
to the date fixed for redemption thereof less the
amount of dividends theretofore paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
any involuntary liquidation or dissolution of the
corporation is hereby fixed at $100 per share plus
an
-17-
amount equal to all dividends accumulated and unpaid
thereon and the amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the Corpora-
tion is hereby fixed as the then redemption price,
including an amount equal to all dividends accumu-
lated and unpaid thereon.
c. Cumulative Preferred Stock, $4.08 Series
(i) There be and there hereby is created from
the authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.08 Series," and the
number of shares constituting said new series is
hereby fixed at 150,000 shares.
(ii) The dividend rate of the shares of said
new series is hereby fixed at $4.08 per share per
annum; dividends on said shares shall be payable on
the 15th day of January, April, July and October for
the quarter-yearly period ending with the last day
of the preceding month, when and as declared by the
Board of Directors.
(iii) The redemption price of the shares of said
new series is hereby fixed at $105 per share in case
of redemption on or prior to December 31, 1959; $104
per share in case of redemption subsequent to Decem-
ber 31, 1959 and on or prior to December 31, 1964;
$103 per share in case of redemption subsequent to
December 31, 1964 and on or prior to December 31,
1969; plus in each case an amount equal to the divi-
dends at the rate of $4.08 per share per annum from
the date dividends on the shares to be redeemed
began to accrue to the date fixed for redemption
thereof less the amount of dividends theretofore
paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the corpora-
tion is hereby fixed as the then redemption price,
including an amount equal to all dividends ac-
cumulated and unpaid thereon.
-18-
d. Cumulative Preferred Stock, $4.11 Series
(i) There be and there hereby is created from
the authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.11 Series," and the
number of shares constituting said new series is
hereby fixed at 200,000 shares.
(ii) The dividend rate of the shares of said
new series is hereby fixed at $4.11 per share per
annum; dividends on said shares shall be payable on
the 15th day of January, April, July and October for
the quarter-yearly period ending with the last day
of the preceding month, when and as declared by the
Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $105.732 per
share in case of redemption on or prior to December
31, 1959; $104.732 per share in case of redemption
subsequent to December 31, 1959 and on or prior to
December 31, 1964; and $103.732 per share in case of
redemption subsequent to December 31, 1964; plus in
each case an amount equal to the dividends at the
rate of $4.11 per share per annum from the date
dividends on the shares to be redeemed began to
accrue to the date fixed for redemption thereof less
the amount of dividends theretofore paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the corpora-
tion is hereby fixed as the then redemption price,
plus an amount equal to all dividends accumulated
and unpaid thereon.
e. Cumulative Preferred Stock, $4.16 Series
(i) There be and there hereby is created from
the authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.16 Series," and the
number of shares constituting said new series is
hereby fixed at 100,000 shares.
-19-
(ii) The dividend rate of the shares of said
new series is hereby fixed at $4.16 per share per
annum; dividends on said shares shall be payable on
the 15th day of January, April, July and October for
the quarter-yearly period ending with the last day
of the preceding month, when and as declared by the
Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $106.25 per
share in case of redemption on or prior to December
31, 1961; $105.75 per share in case of redemption
subsequent to December 31, 1961 and on or prior to
December 31, 1966; $104.75 per share in case of
redemption subsequent to December 31, 1966 and on or
prior to December 31, 1971; and $103.75 per share in
case of redemption subsequent to December 31, 1972;
plus in each case an amount equal to the dividends
at the rate of $4.16 per share per annum from the
date dividends on the shares to be redeemed began to
accrue to the date fixed for redemption thereof,
less the amount of dividends theretofore paid
thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the corpora-
tion is hereby fixed as the then redemption price,
plus an amount equal to all dividends accumulated
and unpaid thereon.
f. Cumulative Preferred Stock $4.56 Series
(i) There be and there hereby is created from
the authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.56 Series," and the
number of shares constituting said new series is
hereby fixed at 150,000 shares.
(ii) The dividend rate of the shares of said
new series is hereby fixed at $4.56 per share per
annum; dividends on said shares shall be payable on
the 15th day of January, April, July and October for
the quarter-yearly period ending with the last day
of the preceding month, when and as declared by the
Board of Directors.
-20-
(iii) The redemption prices of the shares of
said new series are hereby fixed at $105.89 per
share in case of redemption on or prior to December
31, 1969; $104.75 per share in case of redemption
subsequent to December 31, 1969 and on or prior to
December 31, 1974; $103.61 per share in case of
redemption subsequent to December 31, 1974 and on or
prior to December 31, 1979; and $102.47 per share in
case of redemption subsequent to December 31, 1979;
plus in each case an amount equal to the dividends
at the rate of $4.56 per share per annum from the
date dividends on the shares to be redeemed began to
accrue to the date fixed for redemption thereof,
less the amount of dividends theretofore paid
thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the corpora-
tion is hereby fixed as the then redemption price,
including an amount equal to all dividends ac-
cumulated and unpaid thereon.
g. Cumulative Preferred Stock, $6.80 Series
(i) There be and there hereby is created from
the authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $6.80 Series," and the
number of shares constituting said new series is
hereby fixed at 200,000 shares.
(ii) The dividend rate of the shares of said
new series is hereby fixed at $6.80 per share per
annum; dividends on said shares shall be payable on
the 15th day of January, April, July and October for
the quarter-yearly period ending with the last day
of the preceding month, when and as declared by the
Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $106.29 per
share in case of redemption on or prior to December
31, 1973; $105.59 per share in case of redemption
subsequent to December 31, 1973 and on or prior to
December 31,
-21-
1978; $104.89 per share in case of redemption subse-
quent to December 31, 1978 and on or prior to Decem-
ber 31, 1983; and $103.19 per share in case of re-
demption subsequent to December 31, 1983; plus in
each case an amount equal to the dividends at the
rate of $6.80 per share per annum from the date div-
idends on the shares to be redeemed begin to accrue
to the date fixed for redemption thereof, less the
amount of dividends theretofore paid thereon; pro-
vided, however, that the shares of said new series
shall not be redeemable prior to May 1, 1973 from
the proceeds of any refunding of shares of said new
series through the incurring of debt, or through the
issuance of preferred stock ranking equally with or
prior to the shares of said new series as to divi-
dends or on liquidation, if such debt has an effec-
tive interest cost or such preferred stock has an
effective dividend cost to the Company of less than
the effective dividend cost to the Company of the
said new series.
(iv) The amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the corpora-
tion is hereby fixed as the then redemption price,
plus an amount equal to all dividends accumulated
and unpaid thereon.
h. Cumulative Preferred Stock, $7.00 Series
(i) There be and there hereby is created from
the authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock $7.00 Series," and the
number of shares constituting said new series is
hereby fixed at 200,000 shares.
(ii) The dividend rate of the shares of said
new series is hereby fixed at $7.00 per share per
annum; dividends on said shares shall be payable on
the 15th day of January, April, July and October for
the quarter-yearly period ending with the last day
of the preceding month, when and as declared by the
Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $108.45 per
share in
-22-
case of redemption on or prior to December 31, 1974;
$106.79 per share in case of redemption subsequent
to December 31, 1974 and on or prior to December 31,
1979; $104.95 per share in case of redemption subse-
quent to December 31, 1979 and on or prior to Decem-
ber 31, 1984; and $103.20 per share in case of re-
demption subsequent to December 31, 1984; plus in
each case an amount equal to the dividends at the
rate of $7.00 per share per annum from the date div-
idends on the shares to be redeemed begin to accrue
to the date fixed for redemption thereof less the
amount of dividends theretofore paid thereon; pro-
vided, however, that the shares of said new series
shall not be redeemable prior to January 1, 1974
from the proceeds of any refunding of shares of said
new series through the incurring of debt, or through
the issuance of preferred stock ranking equally with
or prior to the shares of said new series as to
dividends or on liquidation, if such debt has an
effective interest cost or such preferred stock has
an effective dividend cost to the Company of less
than the effective dividend cost to the Company of
the said new series.
(iv) The amount which the shares of said new
series are entitled to receive in preference to the
Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the corpora-
tion is hereby fixed as the then redemption price,
plus an amount equal to all dividends accumulated
and unpaid thereon.
i. Cumulative Preferred Stock, Adjustable Rate Series A
(i) There be and there hereby is created from
the authorized and unallocated shares of Cumulative
Preferred Stock of the Company, a new series of Cu-
mulative Preferred Stock of the Company which is
hereby designated "Cumulative Preferred Stock, Ad-
justable Rate Series A" and the number of shares
constituting said new series is hereby fixed at
300,000 shares.
(ii) The dividend rate of the shares of said
new series of Cumulative Preferred Stock is hereby
fixed at: (A) 6.15% per annum for the initial
dividend period from and including the date of
original issuance through June 30, 1986 and (B) the
Applicable Rate, as hereinafter defined, from time
to time in
-23-
effect, for each subsequent dividend period; divi-
dends on said shares, when and as declared by the
Board of Directors, shall be payable on the 15th day
of January, April, July and October for the quarter-
yearly period ending with the last day of the pre-
ceding month; except that the dividend period for
the first such dividend shall begin with and include
the date of original issuance; the dividends payable
on said new series of Cumulative Preferred Stock for
the period from and including the date of original
issuance of said new series of Cumulative Preferred
Stock to and including June 30, 1986 and for any
period less than a full quarterly dividend period
shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days
elapsed in the period for which the dividends are
payable; the dividends payable for each full
quarterly dividend period commencing after June 30,
1986 shall be computed by dividing the Applicable
Rate for such dividend period by four (rounded to
the nearest one-hundredth of a percent) and applying
such computed rate against the par value per share
of said new series of Cumulative Preferred Stock.
The Applicable Rate with respect to each divi-
dend period will be calculated as promptly as prac-
ticable by the Company according to the appropriate
method described herein. The Company will cause no-
tice of such Applicable Rate to be enclosed with, or
mailed concurrently with, the dividend payment
checks next mailed to the holders of shares of said
new series of Cumulative Preferred Stock.
APPLICABLE RATE. Except as provided below in
this paragraph, the "Applicable Rate" for any divi-
dend period will be equal to 76% of the highest of:
(A) the Treasury Bill Rate, (B) the Ten Year
Constant Maturity Rate and (C) the Thirty Year
Constant Maturity Rate (each as hereinafter defined)
for such dividend period. If the Company
determines, in good faith, that for any reason one
or more of (A) the Treasury Bill Rate, (B) the Ten
Year Constant Maturity Rate, and (C) the Thirty Year
Constant Maturity Rate cannot be determined for any
dividend period, then the Applicable Rate for such
dividend period shall be based on the higher of
whichever such rates can be so determined. If the
Company determines, in good faith, that neither (A)
the Treasury Bill Rate, (B) the Ten Year Constant
Maturity Rate nor (C) the Thirty Year Constant
Maturity Rate can be determined
-24-
for any dividend period, then the Applicable Rate in
effect for the preceding dividend period shall be
continued for such dividend period. Notwithstanding
anything to the contrary herein, the Applicable Rate
for any dividend shall not be less than 5.50% per
annum or greater than 10.25% per annum.
TREASURY BILL RATE. Except as provided below
in this paragraph, the "Treasury Bill Rate" for each
dividend period will be the arithmetic average of
the two most recently weekly per annum market
discount rates (or the one weekly per annum market
discount rate, if only one such rate shall be
published during the relevant Calendar Period, as
defined below) for three-month U.S. Treasury Bills,
published by the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") during
the Calendar Period immediately prior to the last
ten calendar days of the June, September, December
or March, next preceding the dividend period for
which the dividend rate on the shares of the new
series of Cumulative Preferred Stock is being
determined. If the Federal Reserve Board does not
publish such a weekly per annum market discount rate
during such Calendar Period, then the Treasury Bill
Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per
annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate
shall be published during such Calendar Period) for
three-month U.S. Treasury Bills, published during
such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected
by the Company. If a per annum market discount rate
for three-month U.S. Treasury Bills shall not be
published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period,
then the Treasury Bill Rate for such dividend period
shall be the arithmetic average of the two most
recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if
only one such rate shall be published during such
Calendar Period) for all of the U.S. Treasury Bills
then having maturities of not less than 80 days nor
more than 100 days, published during such Calendar
Period by the Federal Reserve Board or, if the Fed-
eral Reserve Board shall not publish such rates, by
any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. If
the Company determines, in good faith, that no such
U.S.
-25-
Treasury Bill rates are published as provided above
during such Calendar Period, then the Treasury Bill
Rate for such dividend period shall be the
arithmetic average of the per annum market discount
rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
non-interest bearing U.S. Treasury securities with a
maturity of not less than 80 days nor more than 100
days from the date of each such quotation, as chosen
and quoted daily, for each business day in New York
City (or less frequently if daily quotations shall
not be generally available), to the Company by at
least three recognized dealers in U.S. Government
securities selected by the Company. If the Company
determines, in good faith, that for any reason the
Company cannot determine the Treasury Bill Rate for
any dividend period as provided above in this
paragraph, then the Treasury Bill Rate for such
dividend period shall be the arithmetic average of
the per annum market discount rates based upon the
closing bids during such Calendar Period for each of
the issues of marketable interest-bearing U.S.
Treasury securities with a maturity of not less than
80 days nor more than 100 days from the date of each
such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if
daily quotations shall not be generally available)
to the Company by at least three recognized dealers
in U.S. Government securities selected by the
Company. The weekly per annum market discount rate
for three-month U.S. Treasury Bills shall be the
secondary market rate.
TEN YEAR CONSTANT MATURITY RATE. Except as
provided below in this paragraph, the "Ten Year Con-
stant Maturity Rate" for each dividend period shall
be the arithmetic average of the two most recent
weekly per annum Ten Year Average Yields as herein-
after defined (or the one weekly per annum Ten Year
Average Yield, if only one such Yield shall be pub-
lished during the relevant Calendar Period as
defined below), published by the Federal Reserve
Board during the Calendar Period immediately prior
to the last ten calendar days of the June,
September, December or March, next preceding the
dividend period for which the dividend rate on the
shares of the new series of Cumulative Preferred
Stock is being determined. If the Federal Reserve
Board does not publish such a weekly per annum Ten
year Average Yield during such Calendar Period, then
the Ten Year Constant Maturity Rate for such
dividend period shall be the arithmetic
-26-
average of the two most recent weekly per annum Ten
Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such Yield shall be
published during such Calendar Period), published
during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency
selected by the Company. If a per annum Ten Year
Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by
any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity
rate for such dividend period shall be the
arithmetic average of the two most recent weekly per
annum average yields to maturity (or the one weekly
per annum average yield to maturity, if only one
such yield shall be published during such Calendar
Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other
than Special Securities, as defined below) then
having maturities of not less than eight years nor
more than twelve years, published during such
Calendar Period by the Federal Reserve Board or, if
the Federal Reserve Board shall not publish such
yield, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Com-
pany. If the Company determines in good faith that
for any reason the Company cannot determine the Ten
Year Constant Maturity Rate for any dividend period
as provided above in this paragraph, then the Ten
Year Constant Maturity Rate for such dividend period
shall be the arithmetic average of the per annum
average yields to maturity based upon the closing
bids during such Calendar Period for each of the
issues of actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special
Securities) with a final maturity date not less than
eight years nor more than twelve years from the date
of each such quotation, as chosen and quoted daily
for each business day in New York City (or less
frequently if daily quotations shall not be
generally available) to the Company by at least
three recognized dealers in U.S. Government
securities selected by the Company.
THIRTY YEAR CONSTANT MATURITY RATE. Except as
provided below in this paragraph, the "Thirty Year
Constant Maturity Rate" for each dividend period
shall be the arithmetic average of the two most re-
cent weekly per annum Thirty Year Average Yields as
hereinafter defined (or the one weekly per annum
Thirty Year Average Yield, if only one such Yield
-27-
shall be published during the relevant Calendar Pe-
riod as defined below), published by the Federal Re-
serve Board during the Calendar Period immediately
prior to the last ten calendar days of the June,
September, December or March, next preceding the
dividend period for which the dividend rate on the
shares of the new series of Cumulative Preferred
Stock is being determined. If the Federal Reserve
Board does not publish such a weekly per annum
Thirty Year Average Yield during such Calendar
Period, then the Thirty Year Constant Maturity Rate
for such dividend period shall be the arithmetic
average of the two most recent weekly per annum
Thirty Year Average Yields (or the one weekly per
annum Thirty Year Average Yield, if only one such
Yield shall be published during such Calendar
Period), published during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. If a
per annum Thirty Year Average Yield shall not be
published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period,
then the Thirty Year Constant Maturity Rate for such
dividend period shall be the arithmetic average of
the two most recent weekly per annum average yields
to maturity (or the one weekly per annum average
yield to maturity, if only one such Yield shall be
published during such Calendar Period) for all of
the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securi-
ties) than having maturities of not less than
twenty-eight nor more than thirty years, published
during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board shall not
publish such yields, by any Federal Reserve Bank or
by a U.S. Government department or agency selected
by the Company. If the Company determines in good
faith that for any reason the Company cannot
determine the Thirty Year Constant Maturity Rate for
any dividend period as provided above in this para-
graph, then the Thirty Year Constant Maturity Rate
for such dividend period shall be the arithmetic
average of the per annum average yields to maturity
based upon the closing bids during such Calendar
Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securi-
ties (other than Special Securities) with a final
maturity date not less than twenty-eight years nor
more than thirty years from the date of each such
quotation, as chosen and quoted daily for each busi-
ness day in New York City
-28-
(or less frequently if daily quotations shall not be
generally available) to the Company by at least
three recognized dealers in U.S. Government
securities selected by the Company.
CERTAIN DEFINITIONS. As used herein: (A) the
term "Calendar Period" means a period of fourteen
calendar days; (B) the term "Special Securities"
means securities which can, at the option of the
holder, be surrendered at face value in payment of
any Federal estate tax or which provide tax benefits
to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep
or substantial discount; (C) the term "Ten Year
Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant matu-
rities of ten years); and (D) the term "Thirty Year
Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant matu-
rities of thirty years).
(iii) The redemption prices of the shares of
said new series of Cumulative Preferred Stock are
hereby fixed at (A) $106.15 per share in case of
redemption on or prior to June 30, 1991; (B) $103.00
per share in case of redemption subsequent to June
30, 1991, and on or prior to June 30, 1996; and (C)
$100.00 per share in case of redemption subsequent
to June 30, 1996, plus in each case an amount equal
to the dividends at the respective Applicable Rates
(as defined above) per share per annum from the date
dividends on the shares of the new series of
Cumulative Preferred Stock to be redeemed began to
accrue to the date fixed for redemption thereof,
less the amount of dividends theretofore paid
thereon; provided, however, that the shares of said
new series of Cumulative Preferred Stock shall not
be redeemable, directly or indirectly, prior to July
1, 1991 with the proceeds from borrowed funds, or
from the issuance of any preferred stock ranking
prior to or on a parity with the shares of said new
series of Cumulative Preferred Stock as to dividends
or on liquidation, having an effective cost to the
Company, computed in accordance with generally
accepted financial practice, of less than 6.15% per
annum.
(iv) The amount which the shares of said new
series of Cumulative Preferred Stock are entitled to
-29-
receive in preference to the Common Stock upon any
distribution of assets, other than by dividends from
net earnings or surplus, upon voluntary liquidation
or dissolution of the Company is hereby fixed as the
then redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
j. Cumulative Preferred Stock, Adjustable Rate Series B
(i) There be and there hereby is created from
the authorized and unallotted shares of Cumulative
Preferred Stock of the Company, a new series of Cu-
mulative Preferred Stock of the Company which is
hereby designated "Cumulative Preferred Stock, Ad-
justable Rate Series B" and the numbered of shares
constituting said new series is hereby fixed at
650,000 shares.
(ii) The dividend rate of the shares of said
new series of Cumulative Preferred Stock is hereby
fixed at: (A) 6.80% per annum for the initial
dividend period from and including the date of
original issuance through June 30, 1987 and (B) the
Applicable Rate, as hereinafter defined, from time
to time in effect, for each subsequent dividend
period; dividends on said shares, when and as
declared by the Board of Directors, shall be payable
on the 15th day of January, April, July and October
of each year for the quarterly period ending with
the last day of the preceding month; except that the
dividend period for the first such dividend shall
begin with and include the date of original
issuance; the dividends payable on said new series
of Cumulative Preferred Stock for the period from
and including the date of original issuance of said
new series of Cumulative Preferred Stock to and
including June 30, 1987 and for any period less than
a full quarterly dividend period shall be computed
on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in the
period for which the dividends are payable; the
dividends payable for each full quarterly dividend
period commencing after June 30, 1987 shall be
computed by dividing the Applicable Rate for such
dividend period by four (rounded to the nearest one-
hundredth of a percent) and applying such computed
rate against the par value per share of said new se-
ries of Cumulative Preferred Stock.
-30-
The Applicable Rate with respect to each divi-
dend period will be calculated as promptly as prac-
ticable by the Company according to the appropriate
method described herein. The Company will cause no-
tice of such Applicable Rate to be enclosed with, or
mailed concurrently with, the dividend payment
checks next mailed to the holders of shares of said
new series of Cumulative Preferred Stock.
APPLICABLE RATE. Except as provided below in
this paragraph, the "Applicable Rate" for any divi-
dend period will be equal to 78% of the highest of:
(A) the Treasury Bill Rate, (B) the Ten Year
Constant Maturity Rate and (C) the Thirty Year
Constant Maturity Rate (each as hereinafter defined)
for such dividend period. If the Company
determines, in good faith, that for any reason one
or more of (A) the Treasury Bill Rate, (B) the Ten
Year Constant Maturity Rate, and (C) the Thirty Year
Constant Maturity Rate cannot be determined for any
dividend period, then the Applicable Rate for such
dividend period shall be based on the higher of
whichever such rates can be so determined. If the
Company determines, in good faith, that neither (A)
the Treasury Bill Rate, (B) the Ten Year Constant
Maturity Rate nor (C) the Thirty Year Constant
Maturity Rate can be determined for any dividend
period, then the Applicable Rate in effect for the
preceding dividend period shall be continued for
such dividend period. Notwithstanding anything to
the contrary herein, the Applicable Rate for any
dividend period shall not be less than 5.50% per
annum or greater than 11.00% per annum.
TREASURY BILL RATE. Except as provided below
in this paragraph, the "Treasury Bill Rate" for each
dividend period will be the arithmetic average of
the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount
rate, if only one such rate shall be published
during the relevant Calendar Period, as defined
below) for three-month U.S. Treasury Bills,
published by the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") during
the Calendar Period immediately prior to the last
ten calendar days of the June, September, December
or March, next preceding the dividend period for
which the dividend rate on the shares of the new
series of Cumulative Preferred Stock is being
determined. If the Federal Reserve Board does not
publish such a weekly per annum market discount rate
during such Calendar Period,
-31-
then the Treasury Bill Rate for such dividend period
shall be the arithmetic average of the two most re-
cent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only
one such rate shall be published during such Cal-
endar Period) for three-month U.S. Treasury Bills,
published during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or
agency selected by the Company. If a per annum mar-
ket discount rate for three-month U.S. Treasury
Bills shall not be published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar
Period, then the Treasury Bill Rate for such
dividend period shall be the arithmetic average of
the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount
rate, if only one such rate shall be published dur-
ing such Calendar Period) for all of the U.S.
Treasury Bills then having maturities of not less
than 80 days nor more than 100 days, published
during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board shall not
publish such rates, by any Federal Reserve Bank or
by any U.S. Government department or agency selected
by the Company. If the Company determines, in good
faith, that no such U.S. Treasury Bill rates are
published as provided above during such Calendar
Period, then the Treasury Bill Rate for such
dividend period shall be the arithmetic average of
the per annum market discount rates based upon the
closing bids during such Calendar Period for each of
the issues of marketable non-interest bearing U.S.
Treasury securities with a maturity of not less than
80 days nor more than 100 days from the date of each
such quotation, as chosen and quoted daily, for each
business day in New York City (or less frequently if
daily quotations shall not be generally available),
to the Company by at least three recognized dealers
in U.S. Government securities selected by the
Company. If the Company determines, in good faith,
that for any reason the Company cannot determine the
Treasury Bill Rate for any dividend period as
provided above in this paragraph, then the Treasury
Bill Rate for such dividend period shall be the
arithmetic average of the per annum market discount
rates based upon the closing bids during such Calen-
dar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a ma-
turity of not less than 80 days nor more than 100
days from the date of each such quotation, as chosen
-32-
and quoted daily for each business day in New York
City (or less frequently if daily quotations shall
not be generally available) to the Company by at
least three recognized dealers in U.S. Government
securities selected by the Company. The weekly per
annum market discount rate for three-month U.S.
Treasury Bills shall be the secondary market rate.
TEN YEAR CONSTANT MATURITY RATE. Except as
provided below in this paragraph, the "Ten Year Con-
stant Maturity Rate" for each dividend period shall
be the arithmetic average of the two most recent
weekly per annum Ten Year Average Yields as herein-
after defined (or the one weekly per annum Ten Year
Average Yield, if only one such Yield shall be pub-
lished during the relevant Calendar Period as
defined below), published by the Federal Reserve
Board during the Calendar Period immediately prior
to the last ten calendar days of the June,
September, December or March next preceding the
dividend period for which the dividend rate on the
shares of the new series of Cumulative Preferred
Stock is being determined. If the Federal Reserve
Board does not publish such a weekly per annum Ten
Year Average Yield during such Calendar Period, then
the Ten Year Constant Maturity Rate for such
dividend period shall be the arithmetic average of
the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year
Average Yield, if only one such Yield shall be
published during such Calendar Period), published
during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency
selected by the Company. If a per annum Ten Year
Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by
any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity
Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per
annum average yields to maturity (or the one weekly
per annum average yield to maturity, if only one
such yield shall be published during such Calendar
Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other
than Special Securities, as defined below) then
having maturities of not less than eight years nor
more than twelve years, published during such
Calendar Period by the Federal Reserve Board or, if
the Federal Reserve Board shall not publish such
yields, by any Federal Reserve Bank or by any U.S.
Government department or
-33-
agency selected by the Company. If the Company de-
termines in good faith that for any reason the Com-
pany cannot determine the Ten Year Constant Maturity
Rate for any dividend period as provided above in
this paragraph, then the Ten Year Constant Maturity
Rate for such dividend period shall be the
arithmetic average of the per annum average yields
to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a
final maturity date not less than eight years nor
more than twelve years from the date of each such
quotation, as chosen and quoted daily for each busi-
ness day in New York City (or less frequently if
daily quotations shall not be generally available)
to the Company by at least three recognized dealers
in U.S. Government securities selected by the
Company.
THIRTY YEAR CONSTANT MATURITY RATE. Except as
provided below in this paragraph, the "Thirty Year
Constant Maturity Rate" for each dividend period
shall be the arithmetic average of the two most re-
cent weekly per annum Thirty Year Average Yields as
hereinafter defined (or the one weekly per annum
Thirty Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Pe-
riod as defined below), published by the Federal Re-
serve Board during the Calendar Period immediately
prior to the last ten calendar days of the June,
September, December or March next preceding the
dividend period for which the dividend rate on the
shares of the new series of Cumulative Preferred
Stock is being determined. If the Federal Reserve
Board does not publish such a weekly per annum
Thirty Year Average Yield during such Calendar
Period, then the Thirty Year Constant Maturity Rate
for such dividend period shall be the arithmetic av-
erage of the two most recent weekly per annum Thirty
Year Average Yields (or the one weekly per annum
Thirty Year Average Yield, if only one such Yield
shall be published during such Calendar Period),
published during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or
agency selected by the Company. If a per annum
Thirty Year Average Yield shall not be published by
the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency
during such Calendar Period, then the Thirty Year
Constant Maturity Rate
-34-
for such dividend period shall be the arithmetic av-
erage of the two most recent weekly per annum
average yields to maturity (or the one weekly per
annum average yield to maturity, if only one such
Yield shall be published during such Calendar
Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other
than Special Securities) then having maturities of
not less than twenty-eight years nor more than
thirty years, published during such Calendar Period
by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such yields, by any
Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. If
the Company determines in good faith that for any
reason the Company cannot determine the Thirty Year
Constant Maturity Rate for any dividend period as
provided above in this paragraph, then the Thirty
Year Constant Maturity Rate for such dividend period
shall be the arithmetic average of the per annum
average yields to maturity based upon the closing
bids during such Calendar Period for each of the
issues of actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special
Securities) with a final maturity date not less than
twenty-eight years nor more than thirty years from
the date of each such quotation, as chosen and
quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be
generally available) to the Company by at least
three recognized dealers in U.S. Government securi-
ties selected by the Company.
CERTAIN DEFINITIONS. As used herein: (A) the
term "Calendar Period" means a period of fourteen
calendar days; (B) the term "Special Securities"
means securities which can, at the option of the
holder, be surrendered at face value in payment of
any Federal estate tax or which provide tax benefits
to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep
or substantial discount; (C) the term "Ten Year
Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant matu-
rities of ten years); and (D) the term "Thirty Year
Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant matu-
rities of thirty years).
-35-
(iii) The redemption prices of the shares of
said new series of Cumulative Preferred Stock are
hereby fixed at (A) $106.80 per share in case of
redemption on or before May 31, 1992; (B) $103.00
per share in case of redemption subsequent to May
31, 1992, and on or prior to May 31, 1995; and (C)
$100.00 per share in case of redemption subsequent
to May 31, 1995, plus in each case an amount equal
to the dividends at the respective Applicable Rates
(as defined above) per share per annum from the date
dividends on the shares of the new series of
Cumulative Preferred Stock to be redeemed began to
accrue to the date fixed for redemption thereof,
less the amount of dividends theretofore paid
thereon; provided, however, that the shares of said
new series of Cumulative Preferred Stock shall not
be redeemable, directly or indirectly, prior to May
31, 1992 with the proceeds from borrowed funds, or
from the issuance of any preferred stock ranking
prior to or on a parity with the shares of said new
series of Cumulative Preferred Stock as to dividends
or on liquidation, having an effective cost to the
Company, computed in accordance with generally
accepted financial practice, of less than 6.80% per
annum.
(iv) The amount which the shares of said new
series of Cumulative Preferred Stock are entitled to
receive in preference to the Common Stock upon any
distribution of assets, other than by dividends from
net earnings or surplus, upon voluntary liquidation
or dissolution of the Company is hereby fixed as the
then redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
ARTICLE VI. LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be
personally liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director,
except to the extent provided by applicable law for (i)
liability based on a breach of the duty of loyalty to the
Corporation or the shareholders; (ii) liability for acts or
omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) liability
based on the payment of an improper dividend or an improper
repurchase of the Corporation's stock under Section 180.0833
of the Wisconsin Business Corporation Law or for liability
arising under Section 551.59 of the Wisconsin Statutes for the
unlawful sale of securities; (iv) liability for any
transaction from which the director derived an improper
personal benefit; or (v) liability for any act or
-36-
omission occurring prior to May 28, 1987. If the Wisconsin
Business Corporation Law is further amended to authorize the
further elimination or limitation of the liability of direc-
tors, then the liability of a director of the Corporation in
addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by
any amendment to the Wisconsin Business Corporation Law. Any
repeal or modification of this Article by the shareholders of
the Corporation shall not adversely affect any limitation on
the personal liability of a director of the Corporation exist-
ing at the time of such repeal or modification.
ARTICLE VII. AMENDMENT OF BYLAWS
Authority to make and alter the Bylaws of the Corpo-
ration is hereby vested in the Board of Directors of the Cor-
poration, subject to the power of the stockholders to change
or repeal such Bylaws; provided, however, the Board of
Directors shall not make or alter any bylaw fixing their
number, qualifications, classifications or term of office.
-37-
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
---|
This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
---|
| | |
| | 6/30/96 | | 29 | | | | | 10-Q |
| | 5/31/95 | | 36 |
Filed on: | | 5/3/95 |
For Period End: | | 4/28/95 |
| | 5/31/92 | | 36 |
| List all Filings |
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