Document/Exhibit Description Pages Size
1: 8-K Current Report 9 31K
2: EX-1 Underwriting Agreement 84 290K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 18 68K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 18 68K
5: EX-4 Instrument Defining the Rights of Security Holders 1 5K
6: EX-5 Opinion re: Legality 30 63K
7: EX-6 Opinion re: Discount on Capital Shares 27 63K
8: EX-7 Opinion re: Liquidation Preference 37 118K
9: EX-8 Opinion re: Tax Matters 6 21K
Exhibit 7
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 regis-
tered 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 acquir-
ing, maintaining and operating facilities by or through which
the corporation can provide communication, transportation, wa-
ter, light, heat, or power to the public and to acquire and
hold rights and franchises for the occupation and use of prop-
erty 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 man-
ner 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 state-
ment of the number of shares in each class and the relative
rights, voting power, and preferences granted to and restric-
tions 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 liquida-
tion price or preference as to assets in voluntary liquidation
of the shares of any series of Preferred Stock (except the se-
ries 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, irrespec-
tive 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 de-
fault 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 de-
clared 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 Com-
pany, 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 sur-
plus, 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 liquida-
tion or dissolution (which may differ from that payable in in-
voluntary 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 div-
idends accumulated and unpaid thereon, and no more. The con-
solidation 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 Corpora-
tion 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 pro-
portion to the amounts to which they are, respectively, enti-
tled 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 remain-
ing. 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 sur-
plus 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 Corpora-
tion, 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 certifi-
cate for the shares of Preferred Stock so to be redeemed shall
not have been surrendered for cancellation, the shares repre-
sented thereby from and after the date of redemption so speci-
fied 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 ter-
minate.
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 hold-
ers 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 pre-
ferred shareholders, 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 di-
rectors 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 Corpora-
tion; thereafter during the continuance of such spe-
cial 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 ma-
jority 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 spe-
cial right, shall hold office until the next suc-
ceeding annual election and until their respective
successors, elected by the preferred shareholders,
voting as a class, and the common shareholders, vot-
ing as a class, are elected and qualified, unless
their terms of office shall be sooner terminated as
hereinafter provided. However, if and when all div-
idends then in default on the Preferred Stock shall
thereafter be paid (and such dividends shall be de-
clared 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 de-
fault 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 Corpora-
tion 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 spe-
cial 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 consti-
tute 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 an-
nual 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 out-
standing shares of the Preferred Stock, without regard to se-
ries, shall then be sufficient to constitute a quorum for the
election of the directors whom such shareholders are then en-
titled 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 pre-
ferred shareholders to elect a majority of the Board of Direc-
tors, 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 man-
ner 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 writ-
ing or by vote at a meeting duly called for the purpose in ac-
cordance 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 unse-
cured notes, debentures, or other securities repre-
senting unsecured indebtedness issued or assumed by
the Corporation and then outstanding (including un-
secured 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 out-
standing, 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 Pub-
lic 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 acquisi-
tion 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 con-
solidation.
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 meet-
ing 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 se-
ries, 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 Prefer-
red 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 divi-
dends 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 out-
standing, 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 secu-
rity 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 Corpora-
tion 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 pro-
posed to be issued but excluding any such indebted-
ness 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 divi-
dend 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 divi-
dend 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 in-
terest 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 pe-
riod, there shall be deducted the provisions for de-
preciation and depletion as recorded on such books or
the minimum amount required therefor under the pro-
visions 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 acqui-
sition of properties or to any redemption, acqui-
sition, 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 com-
putation all indebtedness and stock to be retired
through such proposed issue. No portion of the sur-
plus of the Corporation utilized to satisfy the
foregoing requirements shall be available for divi-
dends (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 con-
vertible into stock, ranking on a parity with the
Preferred Stocks are retired or until and to the ex-
tent 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 dec-
laration 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 "cap-
italization ratio") of the sum of (1) the capital repre-
sented 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 Cor-
poration for the period consisting of the twelve consecu-
tive 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 in-
come, 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 ex-
cluded in determining total capital. Surplus ac-
counts shall be deemed to include all earned surplus,
paid-in surplus, capital surplus, or any other sur-
plus 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 divi-
dends embodied in the indentures and supplemental
indentures securing the mortgage bonds of the Corpo-
ration) 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 Cor-
poration 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 es-
timated, 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, capi-
tal stock discount and expense, and the excess, if
any, of the aggregate amount payable on involuntary
dissolution, liquidation, or winding up of the Cor-
poration 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 re-
corded 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 men-
tioned 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 ad-
ditional 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, de-
bentures, 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 Di-
rectors 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 ex-
isting, 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) con-
secutive 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 as-
sets 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 re-
ceive in preference to the Common Stock upon any distribution
of assets, other than by dividends from net earnings or sur-
plus, upon any involuntary liquidation or dissolution of the
Corporation is hereby fixed at One Hundred Dollars ($100) Dol-
lars 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 div-
idends 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 subse-
quent to December 31, 1966 and on or prior to Decem-
ber 31, 1971; and $103.75 per share in case of re-
demption 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 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
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 subse-
quent to December 31, 1974 and on or prior to Decem-
ber 31, 1979; and $102.47 per share in case of re-
demption 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 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
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 se-
ries 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 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.
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 issu-
ance 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 issu-
ance 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 com-
puted by dividing the Applicable Rate for such divi-
dend 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.
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 se-
ries 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 Matu-
rity 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 Matu-
rity 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 pre-
ceding 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 an-
num 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 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 Calender
Period) for three-month U.S. Treasury Bills, pub-
lished 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. Gov-
ernment 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 fre-
quently if daily quotations shall not be generally
available), to the Company by at least three recog-
nized dealers in U.S. Government securities selected
by the Company. If the Company determines, in good
faith, that for any reason the Company cannot deter-
mine the Treasury Bill Rate for any dividend period
as provided above in this paragraph, then the Trea-
sury 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
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 av-
erage 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 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 Pe-
riod for each of the issues of actively traded mar-
ketable 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 div-
idend 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 Av-
erage Yield, if only one such Yield shall be pub-
lished 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 av-
erage of the two most recent weekly per annum average
yields to maturity (or the one weekly per annum av-
erage 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 Com-
pany. 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. Trea-
sury fixed interest rate securities (other than Spe-
cial 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
-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 se-
lected 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 ac-
tively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of
ten years); and (D) the term "Thirty Year Average
Yield" means the average yield to maturity for ac-
tively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities 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 divi-
dends 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, how-
ever, that the shares of said new series of Cumula-
tive Preferred Stock shall not be redeemable, di-
rectly 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 prac-
tice, 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 issu-
ance through June 30, 1987 and (B) the Applicable
Rate, as hereinafter defined, from time to time in
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 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 pe-
riod 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 divi-
dend 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 se-
ries 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 Matu-
rity 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 Matu-
rity 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 pre-
ceding 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 an-
num 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 Calendar
Period) for three-month U.S. Treasury Bills, pub-
lished 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. Gov-
ernment 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.
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 fre-
quently if daily quotations shall not be generally
available), to the Company by at least three recog-
nized dealers in U.S. Government securities selected
by the Company. If the Company determines, in good
faith, that for any reason the Company cannot deter-
mine the Treasury Bill Rate for any dividend period
as provided above in this paragraph, then the Trea-
sury 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 se-
curities 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 av-
erage 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 Pe-
riod for each of the issues of actively traded mar-
ketable 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
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 div-
idend 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 Av-
erage Yield, if only one such Yield shall be pub-
lished 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 av-
erage 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) 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 deter-
mine 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
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 ac-
tively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of
ten years); and (D) the term "Thirty Year Average
Yield" means the average yield to maturity for ac-
tively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities 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, how-
ever, that the shares of said new series of Cumula-
tive Preferred Stock shall not be redeemable, di-
rectly 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 prac-
tice, 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 vio-
lation of law; (iii) liability based on the payment of an im-
proper dividend or an improper repurchase of the Corporation's
stock under Section 180.0833 of the Wisconsin Business Corpo-
ration 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 re-
peal 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 existing 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, quali-
fications, 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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