EXHIBIT NO. 3.1
TO FORM 10-Q,
2ND QUARTER 1994
STATE OF MAINE
CERTIFICATE OF ORGANIZATION OF A CORPORATION
UNDER THE GENERAL LAW
The undersigned, officers of a corporation organized at Bangor, Maine at
a meeting of the signers of the articles of agreement therefor, duly called
and held at the office of the Bangor Railway and Electric Company, Bangor,
Maine on Monday the ninth day of June A.D. 1924 hereby certify as follows:
The name of said corporation is BANGOR HYDRO-ELECTRIC COMPANY.
The purposes of said corporation are:
(a) The acquisition with the consent of the Public Utilities Commission
of the State of Maine and the operation of the properties, rights, privileges
and franchises now or heretofore owned and operated by the Bangor Railway and
Electric Company, Bar Harbor and Union River Power Company, Bangor Power
Company and Lincoln Light and Power Company, including the distribution
systems and other properties acquired or about to be acquired by the Lincoln
Light and Power Company from Montague-Howland Electric Company, Penobscot
Light and Power Company, Edward M. Graham, doing business as the Eastern
Development Company and Edward M. Graham, and extensions, enlargements and
additions to said properties, rights, privileges and franchises to be
hereafter purchased or acquired.
(b) The construction, purchase acquisition, ownership, improvement,
maintenance, use or operation of plants and properties for the making,
generating, selling, distribution or supplying gas or electricity or both,
for lighting, heating, manufacturing or mechanical purposes in the Cities of
Bangor, Brewer, and Old Town and the Towns of Milford, Charleston, Corinth,
Orono, Bradley, Eddington, Veazie, Lincoln, Winn, Mattawamkeag, Glenburn,
Enfield, Howland, Passadumkeag, Orrington, Hermon and Hampden in the County
of Penobscot, the City of Ellsworth and the Towns of Bar Harbor, Blue Hill,
Brookline, Bucksport, Dedham, Mount Desert, Segdwick, Southwest Harbor, Surry
and Trenton in the County of Hancock, and the Towns of Machias, East Machias
and Machiasport in the County of Washington and any other Cities or Towns of
said Counties of Penobscot, Hancock and Washington, in the State of Maine.
(c) In connection with the foregoing the company shall have and
exercise all of the rights, privileges and franchises of the corporation
whose rights, privileges and franchises it acquires and all powers conferred
by the Laws of the State of Maine on public utility corporations of the
character of the corporations whose properties are acquired.
(d) The buying or otherwise obtaining and selling or leasing real
estate and the manufacturing, buying or otherwise obtaining and selling or
leasing personal property necessary or convenient in the prosecution of the
foregoing purposes and generally the doing of all things necessary or
convenient for or incident to said purposes, including the carrying on of any
Mercantile Business in connection with any of said purposes and the taking,
holding and owning by purchase, contract or otherwise of stocks, bonds,
script or other corporations of other corporations and disposing of the same
in any manner, such taking, holding, owning and disposing to be with all the
incidents of ownership.
The amount of capital stock is ten million dollars ($10,000,000).
The amount of common stock is five million dollars ($5,000,000).
The amount of preferred stock is five million dollars ($5,000,000).
The amount of capital stock already paid in is Nothing.
The par value of the shares is one hundred dollars ($100).
The names and residences of the owners of said shares are as follows:
- - --------------------------------------------------------------
NO. OF SHARES
NAMES REFERENCES COMMON PREFERRED
- - --------------------------------------------------------------
Edward M. Graham Bangor, Maine 1 share
Albert E. Bass " 1 "
Charles D. Stanford " 1 "
J. Norman Towle " 1 "
A. Langdon Freese " 1 "
Howard Corning " 1 "
Frank Silliman, 3rd " 1 "
--------------
7 shares
Total number of shares remaining
in Treasury 99,993
---------------
Total number of shares 100,000 shares
===============
Said corporation is located at Bangor, in the County of Penobscot.
The number of Directors is seven and their names are:
Edward M. Graham, Albert E. Bass, Charles D. Stanford, J. Norman Towle, A.
Langdon Freese, Howard Corning and Frank Silliman, 3rd.
The name of the Clerk is Howard Corning and his residence is Bangor.
The undersigned, Edward M. Graham is President; the undersigned Howard
Corning is Treasurer; and the undersigned Edward M. Graham, Albert E. Bass,
Charles D. Stanford, J. Norman Towle, A. Langdon Freese, Howard Corning and
Frank Silliman, 3rd are a majority of the Directors of said corporation.
Witness our hands this ninth day of June A.D. 1924.
Edward M. Graham, President
Howard Corning, Treasurer
Edward M. Graham, Director
J. Norman Towle, Director
Howard Corning, Director
Albert E. Bass, Director
Charles D. Stanford,Director
A. Langdon Freese, Director
Frank Silliman 3rd, Director
PENOBSCOT ss. June 9, A.D. 1924
Then personally appeared Edward M. Graham, Albert E. Bass, Charles D.
Stanford, J. Norman Towle, A. Langdon Freese, Howard Corning and Frank
Silliman, 3rd and severally made oath to the foregoing certificate, that the
same is true.
Before me,
E.C. Ryder Justice of the Peace
--------------------
STATE OF MAINE
I hereby certify that I have examined the foregoing certificate and the
same is property drawn and signed, and is conformable to the constitution and
laws of the State.
Clement F. Robinson, Deputy Attorney General
COPY
(Name of Corporation.)
BANGOR HYDRO-ELECTRIC COMPANY
Penobscot ss.
Registry of Deeds.
Received June 11, 1924 at 9:15 a.m.
Recorded in Vol: 4 Page 424
ATTEST: \ss\ Warren E. Craig, Registrar.
A true copy of record.
ATTEST: \ss\ Warren E. Craig, Registrar.
STATE OF MAINE
Office of the Secretary of State
Augusta, August 1, 1924
Received and filed this day.
ATTEST: \ss\ DEPUTY, Secretary of State
Recorded in Vol. 103 Page 240.TO FRANK W. BALL, SECRETARY OF THE STATE OF
MAINE:
I hereby certify that at a special meeting of the stockholders of the
Bangor Hydro-Electric Company, a corporation organized and existing under the
laws of the State of Maine, held at the offices of said Company, in Bangor,
in the County of Penobscot and State of Maine, on the fifteenth day of June,
A.D. 1926, pursuant to a notice duly given, it was voted, unanimously, by a
majority of the entire stock of said Company to increase the capital stock of
said Company from ten million (10,000,000) dollars to eleven million
(11,000,000) dollars by the issuance of ten thousand (10,000) shares of six
(6) per cent cumulative preferred stock, so that the capital stock of said
Company at the present time consists of fifty thousand (50,0000) shares of
seven (7) per cent preferred stock, ten thousand (10,000) shares of six (6)
percent preferred stock, and fifty thousand (50,000) shares of common stock,
all of the par value of one hundred (100) dollars each and the aggregate
value of eleven million (11,000,000) dollars.
Witness my hand and the seal of said Company this fifteenth day of June,
A.D. 1926.
\ss\ Eugene M. Dole
Clerk of Bangor Hydro-
Electric Company
Bangor Hydro-Electric Company
Increase of Capital
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, June 14, 1926
Received and filed this day.
ATTEST:
\ss\ DEPUTY, Secretary of State
Recorded in Vol. 17 Page 320.
STATE OF MAINE
PUBLIC UTILITIES COMMISSION
Certificate of increase of capital stock
of Bangor Hydro-Electric Company.
-----------
For reasons set forth in our decree of July 14, 1926, entitled Bangor
Hydro-Electric Company: Re application for approval of issue of securities,
U. 865, it is
CERTIFIED that the Bangor Hydro-Electric Company has been authorized
under Section 39 of Chapter 55 of the Revised Statutes, as amended, to
increase its capital stock by the amount of one million dollars ($1,000,0000)
of 6% preferred capital stock, so that the capitalization of said company is
- - -
No. Aggregate
Kind of Stock of shares Par value Amount
- - -----------------------------------------------------------------
Common stock 50,000 $100 $5,000,000
Preferred stock 7% 50,000 $100 $5,000,000
Preferred stock 6% 10,000 $100 $1,000,000
-----------
Total $11,000,000
===========
It is further
CERTIFIED that the Bangor Hydro-Electric Company has complied with the
requirements of Section 42 of Chapter 51 of the Revised Statutes, as amended
by Chapter 196 of the Public Laws of 1925, by payment of the prescribed fees
to the State of Maine, and it is further
CERTIFIED that said increase of stock was duly authorized by vote of the
stockholders at a meeting properly called and held for said purpose, and it
is further
CERTIFIED that within fifteen (15) days after said vote of said
stockholders, notice of the proposed increase was filed with this Commission.
Given the hand and seal of the Public Utilities Commission at Augusta,
this 14th day of July, A.D. 1926.
Charles E. Gurney PUBLIC UTILITIES
Herbert W. Trafton COMMISSION
Albert Greenlaw OF MAINE
A true copy.
ATTEST: \ss\
Bangor Hydro-Electric Company
Increase of Capital
STATE OF MAINE
Office of Secretary of State
Augusta, July 17, 1926
Received and filed this day.
ATTEST:
\ss\ DEPUTY, Secretary of State
Recorded in Vol. 6 Page 266.
STATE OF MAINE
PUBLIC UTILITIES COMMISSION
Certificate of increase of capital stock
of the Bangor Hydro-Electric Company.
----------
For reasons set forth in our decree of even date, entitled "Bangor
Hydro-Electric Company, re: application for increase of capital stock, U
#968" it is
CERTIFIED that the Bangor Hydro-Electric Company has been authorized
under Section 39 of Chapter 55 of the Revised Statutes, as amended, to
increase its capital stock from Eleven Million Dollars ($11,000,000) to
Thirteen Million Dollars ($13,000,000), said increase to consist of twenty
thousand (20,000) shares of Six Per Cent Cumulative Preferred Stock of the
par value of One Hundred Dollars ($100) each. It is further
CERTIFIED that the Bangor Hydro-Electric Company has complied with the
requirements of Section 42 of Chapter 51 of the Revised Statutes, as amended,
by payment of the prescribed fees to the State of Maine; and it is further
CERTIFIED that the said increase of stock was duly authorized by vote of
the stockholders at a meeting properly called and held for said purposes; and
it is further
CERTIFIED that within fifteen days after said vote of said stockholders,
notice of the proposed increase was filed with this Commission.
Given under the hand and seal of the Public Utilities Commission at
Augusta, this 19th day of November, A.D. 1927.
Charles E. Gurney PUBLIC UTILITIES
Herbert W. Trafton COMMISSION
Albert Greenlaw OF MAINE
A true copy,
ATTEST: \ss\ Clerk
Bangor Hydro-Electric Company
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, December 3, 1927
Received and filed this day.
ATTEST:
\ss\ Secretary of State
Recorded in Vol. 6 Page 321.TO THE STOCKHOLDERS OF THE BANGOR
HYDRO-ELECTRIC COMPANY
Notice is hereby given that a Special Meeting of the Stockholders of the
Bangor Hydro-Electric Company will be held at the principal office of the
Company, No. 84 Harlow Street, in the City of Bangor, Maine on Tuesday, the
eighth day of November, A.D. 1927, at ten o'clock A.M., for the purpose of
considering and voting on the following matters:
1. The increase of the capital stock of the Company from $11,000,000
to $13,000,000, by the issuance of 20,000 shares of 6% cumulative
preferred stock.
2. The approval and ratification of the votes of the Board of
Directors authorizing such issue.
3. The transaction of such other business as may be presented to the
meeting.
If you cannot attend the meeting, please sign the enclosed proxy, have
your signature witnessed and return the same in the enclosed stamped
envelope.
By order of the Board of Directors.
Eugene M. Dole, Clerk
October 21st, 1927.
State of Maine
County of Penobscot, s.s. October 21st, 1927.
I have this day deposited notices whereof the above is a true copy,
signed by me as Clerk of the Bangor Hydro-Electric Company, and addressed,
postage paid, to the several stockholders at their respective last known
addresses, as the same appear on the stock books of the Company, in the Post
Office at Bangor, said County and State.
Eugene M. Dole, Clerk
A true copy of the original notice and of the certificate of return of
service thereof.
Eugene M. Dole, Clerk
In accordance with the By-Laws of the Bangor Hydro-Electric Company and
with notice duly issued as above recorded, the stockholders of said Bangor
Hydro-Electric Company met in special meeting at the principal office of said
Company, No. 84 Harlow Street, Bangor, Maine, on Tuesday, the eighth day of
November, 1927, at ten o'clock in the forenoon.
The President called the meeting to order and presided throughout.
The notice of the meeting and the certificate of return of service
thereof were read by Eugene M. Dole, Clerk of this Company.
On motion duly made and seconded, it was
VOTED, unanimously, that the capital stock of the Bangor Hydro-Electric
Company be increased from $11,000,000 to $13,000,000, by the issuance of
20,000 shares of 6% cumulative preferred stock to be sold from time to time
to pay for extensions and improvements of the property of the Company and for
other corporate purposes which may arise from time to time, as the
necessities of the Company and the increase of business require, at a price
not less than the price fixed by the Public Utilities Commission.
VOTED FURTHER, that the vote of the Board of Directors of the Company
passed at a meeting of the Board held on the 13th day of October, 1927,
authorizing such issue be and it is hereby approved, ratified and confirmed.
VOTED FURTHER, that the Clerk of the Company be and he is hereby
directed to file with the Public Utilities Commission of the State of Maine,
as provided by law within fifteen days from the date of this meeting, a
certificate verified by his affidavit that a vote increasing the capital
stock of the Bangor Hydro-Electric Company from $11,000,000 to $13,000,000
was on the 8th day of November, 1927, duly passed by the Stockholders of that
Company representing a majority of the stock issued, voting at a meeting duly
called and held for the purpose of such increase,---
I, Eugene M. Dole, Clerk of the Bangor Hydro-Electric Company, hereby
certify that the foregoing is a true copy of a portion of the minutes of a
special meting of the stockholders, held at the principal office of the
Company, No. 84 Harlow Street, Bangor, Maine, on Tuesday, November 1927, at
ten o'clock in the forenoon.
\ss\ Eugene M. Dole, Clerk
Bangor Hydro-Electric Company
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, December 3, 1927
Received and filed this day.
ATTEST:
\ss\ Secretary of State
Recorded in Vol. 18 Pages 188 & 189.
BANGOR HYDRO-ELECTRIC COMPANY
AMENDMENT TO CERTIFICATE OF ORGANIZATION
I, EUGENE M. DOLE, Clerk of Bangor Hydro-Electric Company, hereby
certify that at a meeting of the stockholders of said Company duly and
regularly convened and held according to the By-Laws of the Company and
according to law, at the principal office of the Company, No. 33 State
Street, Bangor, Maine, on the twelfth day of February, 1929, at 10 o'clock
A.m., the following Resolutions were duly adopted by the affirmative vote of
the holders of a majority of the Capital Stock issued and outstanding of the
Company:
On motion, duly made and seconded, the following resolutions were
adopted by the unanimous vote of all of the stockholders present,
constituting more than a majority of all of the stock issued:
"VOTED, that the par value of the shares of the Common Stock of this
Company be and the same hereby is changed from $100. per share to $25.
per share, and that the number of shares to be issued to be
correspondingly increased from 50,000 to 200,000 shares; and
VOTED FURTHER, that four shares of the Common Stock of this Company of
the par value of $25. each shall be issued in exchange for each
outstanding share of Common Stock of the par value of $100.
VOTED, that the capital stock of the Company be increased from
$13,000,000 to $15,500,000 by the authorization of 100,000 shares of its
Common Capital Stock of the par value of $25. each, the said stock to be
used for the corporate purposes of the Company which may arise from time
to time, the stock to be issued at a price not less than the price fixed
by the Public Utilities Commission; so that after the increase the
authorized Capital Stock of this Company shall be as follows:
7% Preferred Stock, par value
$100. per share $5,000,000.
6% Preferred Stock, par value
$100. per share 3,000,000.
Common Stock, par value
$25. per share 7,500,000.
------------
Total Authorized Capital $15,500,000.
============
VOTED, that the President or Clerk of this Company, either of whom may
act, be and they hereby are requested and directed to file in the office of
the Secretary of State a certificate setting forth the changes in the Charter
or Certificate of Organization of this Company provided for by the foregoing
resolutions."
WITNESS my hand and seal the 12th day of February, one thousand none
hundred and twenty-nine.
\ss\ Eugene M. Dole
{SEAL}
Clerk of Bangor Hydro-
Electric Company
STATE OF MAINE
Penobscot, ss. February 12th, 1929.
Then personally appeared the above named EUGENE M. DOLE and made oath
that the above statement by him subscribed is true.
\ss\ Sherman N. Shumway
Notary Public {SEAL}
Bangor Hydro-Electric Company
Decrease in Par Value
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, February 11, 1929
Received and filed this day.
ATTEST:
\ss\ Secretary of State
Recorded in Vol. 18 Page 522.
STATE OF MAINE
PUBLIC UTILITIES COMMISSION
Bangor Hydro-Electric Company, Re: Application for approval of increase of
capital stock.
U.#1071
STEARNS, Chairman; TRAFTON and GREENLAW, Commissioners;
APPEARANCES: Sherman N. Shumway, Esq., for Petitioner.
The Bangor Hydro-Electric Company, a public utility, filed with the
Commission an application seeking authority to increase its capital stock
from Thirteen Million Dollars ($13,000,000) to Fifteen Million, Five Hundred
Thousand Dollars ($15,500,000).
The petitioner at a meeting of its stockholders held February 12, 1929,
attended by a quorum of the capital stock issued and outstanding, voted to
increase its capital stock from Thirteen Million Dollars ($13,000,000) to
Fifteen Million, Five Hundred Thousand Dollars ($15,500,000) by the
authorization of one hundred thousand (100,000) shares of common capital
stock of the par value of Twenty-five Dollars ($25) each.
Within fifteen days after the vote of its stockholders aftersaid the
petitioner filed notice of said increase of its capital stock with the
Commission.
The fees prescribed by statute having been paid a certificate will be
issued certifying our approval of the increase. The Clerk of this Commission
is
DIRECTED
to cause to be filed a certificate in the office of the Secretary of State
certifying to such increase. It is accordingly
ORDERED, ADJUDGED AND DECREED
1. That the Commission approve the increase of capital stock of the
Bangor Hydro-Electric Company from Thirteen Million Dollars ($13,000,000) to
Fifteen Million, Five Hundred Thousand Dollars ($15,500,000) said increase to
consist of one hundred thousand (100,000) shares of common capital stock of
the par value of Twenty-five Dollars ($25) each, aggregating Two Million, Two
Hundred Fifty Thousand Dollars ($2,250,000) and the fees prescribed by
statute having been paid, certificate of this Commission will be issued
approving said increase.
The Clerk of this Commission is hereby
DIRECTED
to cause to be filed in the office of the Secretary of State a certificate
attested by him, certifying to such increase. The Clerk will also make his
return, evidencing his compliance with this order.
Given under the hand and seal of the Public Utilities Commission, at
Augusta, this nineteenth day of February, A.D., 1929.
Albert J. Stearns PUBLIC UTILITIES
Herbert W. Trafton COMMISSION
Albert Greenlaw OF MAINE
A true copy,
ATTEST:
\ss\ Clerk
STATE OF MAINE
PUBLIC UTILITIES COMMISSION
Certificate of increase of capital
stock of the Bangor Hydro-Electric Company
For reasons set forth in our decree of even date, entitled "Bangor
Hydro-Electric Company, Re: Application for increase of capital stock, U.
#1071", it is
CERTIFIED that the Bangor Hydro-Electric Company has been authorized
under Section 39 of Chapter 55 of the Revised Statutes, as amended, to
increase its capital stock from Thirteen Million Dollars ($13,000,000) to
Fifteen Million, Five Hundred Thousand Dollars ($15,500,000) said increase to
consist of one hundred thousand (100,000) shares of common capital stock of
the par value of Twenty-five Dollars ($25) each. It is further
CERTIFIED that the Bangor Hydro-Electric Company has complied with the
requirements of Section 42 of Chapter 51 of the Revised Statutes, as amended,
by payment of the prescribed fees to the State of Maine; and it is further
CERTIFIED that said increase of stock was duly authorized by vote of the
stockholders at a meeting properly called and held for said purposes; and it
is further
CERTIFIED that within fifteen days after said vote of said stockholders,
notice of the proposed increase was filed with this Commission.
Given under the hand and seal of the Public Utilities Commission, at
Augusta, this 19th day of February, A.D., 1929.
ALBERT J. STEARNS PUBLIC UTILITIES
HERBERT W. TRAFTON COMMISSION
ALBERT GREENLAW OF MAINE
ATTEST:
A true copy,
\ss\ Clerk
Bangor Hydro-Electric Company
Increase of Capital
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, February 22, 1929
Received and filed this day.
ATTEST:
\ss\ DEPUTY, Secretary of State
Recorded in Vol. 6 Pages 361 & 362.
BANGOR HYDRO-ELECTRIC COMPANY
CERTIFICATE OF INCREASE OF CAPITAL STOCK
I, EUGENE M. DOLE, Clerk of Bangor Hydro-Electric Company, hereby
certify that at a meeting of the stockholders of said Company duly and
regularly convened and held according to the By-Laws of the Company and
according to law, at the principal office of the Company, No. 33 State
Street, Bangor, Maine of the twelfth day of February, 1929, at ten o'clock
A.M., the following Resolutions, among others, were duly adopted by the
affirmative vote of the holders of a majority of the Capital Stock issued and
outstanding of the Company:
VOTED, that the capital stock of the Company be increased from
$13,000,000 to $15,500,000 by the authorization of 100,000 shares of its
Common Capital Stock of the par value of $25. each, the said stock to be
used for the corporate purposes of the Company which may arise from time
to time, the stock to be issued at a price not less than the price fixed
by the Public Utilities Commission; so that after the increase the
authorized Capital Stock of this Company shall be as follows:
7% Preferred Stock, par value
$100. per share $5,000,000.
6% Preferred Stock, par value
$100 per share 3,000,000.
Common Stock, par value
$25. per share 7,500,000.
-----------
Total Authorized Capital $15,500,000.
===========
*******************
VOTED FURTHER, that the officers and Directors of this Company be and
they hereby are authorized, empowered and directed to take such steps as may
be necessary and proper to secure the consent of the Public Utilities
Commission to the increase of the Common Capital Stock, ******** and they are
further authorized to do all such other acts, matters and things as may be
necessary and proper to carry the foregoing resolutions into effect.
WITNESS my hand and seal this eighteenth day of February, one thousand
nine hundred and twenty-nine.
\ss\ Eugene M. Dole
Clerk of Bangor Hydro-
Electric Company
STATE OF MAINE
Penobscot, ss. February 18th, 1929.
Then personally appeared the above named EUGENE M. DOLE and made oath
that the above statement by him subscribed is true.
\ss\ Sherman N. Shumway
Notary Public {SEAL}
Bangor Hydro-Electric Company
Increase in Capital
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, February 22, 1929
Received and filed this day.
ATTEST:
\ss\ DEPUTY, Secretary of State
Recorded in Vol. 18 Page 532. I, Eugene M. Dole, Clerk of
Bangor Hydro-Electric Company, hereby certify that each of the following
resolutions were adopted by stockholders of record representing a majority of
the voting power (including a majority of the voting power of the Common
Stock) of the Company's authorized and issued capital stock on each of said
resolutions at the Annual Meeting of the stockholders of said Company which
was duly and regularly convened and held in accordance with the By-Laws of
the Company and according to the law at the principal office of the Company
at No. 33 State Street, Bangor, Maine on February 8, 1944 at ten o'clock in
the forenoon.
I further certify that notice of the proposed reduction of the Company's
capital stock was given in the call for said meeting.
RESOLVED, that the authorized capital stock of this Company be
changed from $15,500,000 now consisting of $5,000,000 in 7% Preferred
Stock divided into 50,000 shares of the par value of $100 each,
$3,000,000 in 6% Preferred Stock divided into 30,000 shares of the par
value of $100 each, and $7,500,000 in Common Stock divided into 300,000
shares of the par value of $25.00 each, to $12,500,000 consisting of
$8,000,000 in Preferred Stock represented by the shares now authorized
and $4,500,000 represented by 300,000 shares of Common Stock of the par
value of $15.00 each, without change, however, in the existing
preferences, priories and voting rights of the respective classes of
stock.
FURTHER RESOLVED, that the Clerk file a certificate of the action
of this meeting with the Secretary of State upon receipt of a decree
from the Public Utilities Commission granting consent to the changes
aforesaid and obtain a certificate from such Secretary of State showing
said changes.
IN WITNESS WHEREOF, I have hereunto set my hand as Clerk of Bangor
Hydro-Electric Company this 8th day of February, 1944.
\ss\ Eugene M. Dole
Clerk of Bangor Hydro-Electric Company
---------
STATE OF MAINE
Penobscot, ss: February 8, 1944
Personally appeared the above-named Eugene M. Dole and made oath that
the statement by him subscribed is true. Before me,
\ss\ Albert C. Blanchard
Notary Public
CERTIFICATE OF REDUCTION
OF CAPITAL STOCK
BANGOR HYDRO-ELECTRIC COMPANY
February 8, 1944
FROM THE OFFICE OF
ALBERT C. BLANCHARD
45 STATE STREET
BANGOR, MAINEBANGOR HYDRO-ELECTRIC COMPANY
Decrease in Capital Stock
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, February 8, 1944
Received and Filed this day.
\ss\ SECRETARY OF STATE
Recorded: Vol. 26, Page 2.CERTIFICATE RELATING TO
RECLASSIFICATION OF CAPITAL STOCK OF BANGOR HYDRO-ELECTRIC COMPANY
Bangor Hydro-Electric Company, a corporation organized and existing
under the laws of the State of Maine, and having its principal place of
business at Bangor, County of Penobscot, State of Maine, does hereby certify:
(1) That a duly called and legally convened meeting of the Company's
stockholders was held at the Company's offices at Bangor, Maine, on June 11,
1946, at which meeting the holders of a majority of the Company's capital
stock entitled to vote, to-wit, holders of 55,746-1/4 votes, out of a total
of 101,103 authorized votes, were present in person or represented by proxy.
(2) That at said meeting the Company's stockholders, present in person
or represented by proxy, unanimously voted as follows:
"VOTED to reduce the authorized 7% Preferred Stock from 50,000
shares to 25,000 shares and to reduce the authorized 6% Preferred Stock
from 30,000 shares to 21,799 shares leaving a balance of 33,201
authorize shares of Preferred Stock unclassified pending action by the
stockholders or by the Board of Directors acting under authority
conferred by the stockholders.
"VOTED FURTHER to authorize the issue of not more than 21,799
shares of 4% Preferred Stock, Series A, carrying dividends at the rate
of 4% per annum on the par value thereof in exchange for shares of the
6% Preferred Stock, at the option of the holders thereof prior to
redemption, on a share for share basis.
"VOTED FURTHER to authorize the Board of Directors in its
discretion to issue and sell shares of 4% Preferred Stock, Series B, not
exceeding in number the shares of the 6% Preferred Stock retired by
redemption.
"VOTED FURTHER that the holders of the capital stock of the Company
of all classes hereby waive their right to subscribe for any part of not
exceeding 21,799 shares of Preferred Stock carrying dividends of not
more than $4.00 per share per year, to be issued in exchange for shares
of the 6% Preferred Stock at the option of the holders thereof, and to
reimburse the treasury of the Company in the discretion of the Board of
Directors for all or any part of the funds used for the redemption of
the 6% Preferred Stock in an amount not exceeding the par value of the
shares retired by redemption.
"VOTED FURTHER to authorize the Board of Directors in its
discretion from time to time to issue shares of Preferred Stock in one
or more series with such provisions for dividends and redemption as they
may determine, subject to the right of the holders of the capital stock
of the Company to subscribe therefor and provided that not more than
80,000 shares of Preferred Stock of all classes and series shall be
outstanding at any time."
CERTIFICATE RELATING TO RECLASSIFICATION OF
CAPITAL STOCK OF BANGOR HYDRO-ELECTRIC COMPANY
Bangor Hydro-Electric Company, a corporation organized and existing
under the laws of the State of Maine, and having its principal place of
business at Bangor, County of Penobscot, State of Maine, does hereby certify:
(1) That a duly called and legally convened meeting of the Company's
stockholders was held at the Company's offices at Bangor, Maine on June 11,
1946, at which meeting the holders of a majority of the Company's capital
stock entitled to vote, to-wit, holders of 55,746-1/4 votes, out of a total
of 101,103 authorized votes, were present in person or represented by proxy.
(2) That at said meeting the Company's stockholders, present in person
or represented by proxy, unanimously voted as follows:
"VOTED to reduce the authorized 7% Preferred Stock from 50,000
shares to 25,000 shares and to reduce the authorized 6% Preferred Stock
from 30,000 shares to 21,799 shares leaving a balance of 33,201
authorized shares of Preferred Stock unclassified pending action by the
stockholders or by the Board of Directors acting under authority
conferred by the stockholders.
"VOTED FURTHER to authorize the issue of not more than 21,799
shares of 4% Preferred Stock, Series A, carrying dividends at the rate
of 4% per annum on the par value thereof in exchange for shares of the
6% Preferred Stock, at the option of the holders thereof prior to
redemption, on a share for share basis.
"VOTED FURTHER to authorize the Board of Directors in its
discretion to issue and sell shares of 4% Preferred Stock, Series B, not
exceeding in number the shares of the 6% Preferred Stock retired by
redemption.
"VOTED FURTHER that the holders of the capital stock of the Company
of all classes hereby waive their right to subscribe for any part of not
exceeding 21,799 shares of Preferred Stock carrying dividends of not
more than $4.00 per share per year, to be issued in exchange for shares
of the 6% Preferred Stock at the option of the holders thereof, and to
reimburse the treasury of the Company in the discretion of the Board of
Directors for all or any part of the funds used for the redemption of
the 6% Preferred Stock in an amount not exceeding the par value of the
shares retired by redemption.
"VOTED FURTHER to authorize the Board of Directors in its
discretion from time to time to issue shares of Preferred Stock in one
or more series with such provisions for dividends and redemption as they
may determine, subject to the right of the holders of the capital stock
of the Company to subscribe therefor and provided that not more than
80,000 shares of Preferred Stock of all classes and series shall be
outstanding at any time."
(3) That the authorized capital stock of said Bangor Hydro-Electric
Company is neither increased nor decreased by the aforesaid votes adopted by
the Company's stockholders in the manner hereinbefore set forth.
IN WITNESS WHEREOF said Bangor Hydro-Electric Company has caused its
corporate seal to be hereunto affixed and this certificate to be executed by
Edward M. Graham, its President, duly authorized hereunto this 17th day of
June, 1946.
BANGOR HYDRO-ELECTRIC COMPANY
By \ss\ Edward M. Graham
President
STATE OF MAINE
Penobscot, ss. June 17, 1946
I, Eugene M. Dole, Clerk of Bangor Hydro-Electric Company, hereby
certify that the statements contained in the foregoing certificate of said
Company executed by Edward M. Graham, its President, are true.
\ss\ Eugene M. Dole, Clerk {SEAL}
BANGOR HYDRO-ELECTRIC COMPANY
Reclassification of capital stock
103--240
STATE OF MAINE
Office of Secretary of State
Augusta, June 20, 1946
Received and filed this day.
ATTEST:
SECRETARY OF STATE
Recorded Vol. 27, Pages 101 & 102
I, EUGENE M. DOLE, Clerk of Bangor Hydro-Electric Company, a Maine
corporation having its principal place of business at Bangor, Maine, hereby
certify that the Annual Meeting of the Stockholders of said Company was duly
called, legally convened and held on February 14, 1950 at ten o'clock in the
forenoon, at the principal offices of said Company at No. 33 State Street,
Bangor, Maine, in accordance with said Company's By-Laws and in accordance
with the laws of the State of Maine; that at said meeting, by a vote
representing a majority of the voting power of said Company's outstanding
capital stock, it was among other matters, voted to increase the authorized
capital stock of said Company by $5,000,000, such increase to be represented
by 20,000 shares of Preferred Stock of the par value of $100 each, and
200,000 shares of Common Stock of the par value of $15 each, so that the
total amount of authorized capital stock of said Company will be $17,500,000,
represented by 100,000 shares of Preferred Stock of the par value of $100
each and 500,000 shares of Common Stock of the par value of $15 each; that at
said meeting and by a vote representing a majority of the voting power of
said Company's outstanding Capital Stock, it was further voted that subject
to reclassification hereafter upon retirement by redemption or otherwise, the
Company's "4% Preferred Stock, Series A," shall presently consist of 17,500
such shares, being the number thereof now outstanding, and that the "4%
Preferred Stock, Series B," be and it is hereby eliminated as a class of
authorized but unissued Preferred Stock.
I further certify that notice of the proposed increase in the Company's
authorized capital stock and changes in capital structure was duly given in
the call for said meeting; that the text of the resolutions relating to the
aforesaid increase and changes in capital structure, affirmatively acted upon
and adopted at said meeting by stockholders' on record, representing a
majority of the voting power of the Company's outstanding capital stock is as
follows:
RESOLVED, that the Company's authorized capital stock be increased
by $5,000,000, such increase to be represented by 20,000 shares of
Preferred Stock of the par value of $100 each and 200,000 shares of
Common Stock of the par value of $15 each, so that the total amount of
authorized capital stock of this Company will be $17,500,000 represented
by 100,000 shares of Preferred Stock of the par value of $100 each and
500,000 shares of Common Stock of the par value of $15 each.
RESOLVED, that subject to reclassification hereafter upon
retirement by redemption or otherwise, the Company's 4% Preferred Stock,
Series A, shall presently consist of 17,500 such shares, being the
number thereof now outstanding, and that the "4% Preferred Stock, Series
B," be and it is hereby eliminated as a class of authorized but unissued
preferred stock.
RESOLVED, that the officers of this Company, or any one or more of
them, be and they hereby are authorized and directed to make, sign,
verify and acknowledge in behalf of this Company, a certificate setting
forth the foregoing changes with respect to the increase of the
authorized capital stock of this Company and to file such certificate
within the time and in the manner required by statute and to do all
other acts and things that may be necessary or proper to carry into
effect the foregoing resolutions, or any of them, in compliance with the
laws of the State of Maine.
IN WITNESS WHEREOF, I have hereunto executed the foregoing certificate
in my capacity as Clerk of Bangor Hydro-Electric Company, this twenty-first
day of February, 1950.
\ss\ Eugene M. Dole
Clerk of Bangor Hydro-Electric Company
STATE OF MAINE
Penobscot, ss. February 21, 1950.
Personally appeared the above named Eugene M. Dole, and made oath that
the statements contained in the above certificate by him subscribed are true.
Before me,
\ss\ Albert C. Blanchard {SEAL}
Notary Public
BANGOR HYDRO-ELECTRIC COMPANY
Increase in Capital Stock
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, February 28, 1950
Received and Filed this day.
\ss\
SECRETARY OF STATE
Recorded: Vol. 29, Pages 349 & 350.
BANGOR HYDRO-ELECTRIC COMPANY
Certificate of decrease in par value of authorized Common Stock,
increase in authorized number of shares of Common Stock, and By-Law
amendments relating thereto and to preemptive rights.
I, Albert C. Blanchard, Clerk of Bangor Hydro-Electric Company, a Maine
corporation duly organized and existing according to law and having its
principal place of business at Bangor, County of Penobscot, State of Maine,
hereby certify as follows:
1. That the Annual Meeting of the Stockholders of said Company was duly
and regularly convened and held in accordance with the By-Laws of said
Company and according to law at the principal office of said Company at 31
Main Street, Bangor, Maine of May 9, 1961 at ten o'clock in the forenoon,
Eastern Daylight Time, at which meeting stockholders representing a majority
of the voting power of the Company's capital stock entitled to be voted
thereat, to wit, holders of 117,462 1/4 votes, out of a total of 139,732 1/2
authorized votes, were present in person or represented by proxy.
2. That at said meeting 117,391 votes, representing a majority of the
voting power of said Company's authorized and issued capital stock, were cast
in favor of the adoption of the following resolution by stockholders present
in person or represented by proxy, viz:
RESOLVED:
(a) That the authorized Common Stock of Bangor Hydro-Electric
Company, now consisting of 500,000 shares of the par value of $15.00
each, be increased to 1,500,000 shares of Common Stock of the par value
of $5.00 each.
(b) That the 369,570 shares of the Company's Common Stock of the
par value of $15.00 each, presently issued and outstanding, be changed
into 1,108,710 shares of Common Stock of the par value of $5.00 each, on
the basis of the issuance of two additional shares of Common Stock of
the par value of $5.00 each in respect of each of the 369,570 shares of
Common Stock presently issued and outstanding.
(c) That Section 1 of Article XI of the Company's By-Laws, as
amended, be and the same is hereby further amended to read as follows:
Section 1. The authorized capital stock of the Company shall be
$17,500,000 represented by 100,000 shares of Preferred Stock of the par
value of $100.00 each and 1,500,000 shares of Common Stock of the par
value of $5.00 each.
(d) That Section 5 of Article III of the Company's By-Laws, as
amended, be and the same is hereby further amended to read as follows:
Section 5. Stockholders entitled to vote at any meeting of
stockholders may vote either in person or by proxy granted not more than
sixty days before the meeting, the date of which shall be named therein,
and said proxies shall not be valid after a final adjournment thereof.
Stockholders may also be represented by a general power of attorney
produced at the meeting and valid until it is revoked. At any meeting
of stockholders, each holder of Common Stock entitled to vote thereat
shall be entitled to cast one-twelfth of a vote for each share of Common
Stock held, and each holder of Preferred Stock entitled to vote thereat
shall be entitled to cast one vote for each share of such Preferred
Stock held. Except as the Board of Directors may otherwise fix and
determine in the By-Laws with respect to any class or series of
Preferred Stock having special voting powers, a majority of the total
votes cast at any meeting of stockholders shall be sufficient for the
adoption or rejection of any question presented, unless otherwise
provided by law.
3. That the authorized capital stock of Bangor Hydro-Electric Company
is neither increased nor decreased by the adoption of the foregoing
resolution.
4. That notice of the proposed action upon and with respect to each of
the matters set forth in the foregoing resolution was duly given in the call
for said meeting.
5. That at said meeting the following resolution relating to preemptive
rights was adopted by stockholders having a right to vote thereat, by a vote
representing 99.9% of the shares present of represented at the meeting, to
wit, by 117,338 1/4 votes, out of 117,462 1/2 votes authorized to be cast:
RESOLVED:
That Section 7 of Article XI of the Company's By-Laws, as amended,
be and the same is hereby repealed, and the following enacted in place
thereof:
Section 7. The Board of Directors, by resolution adopted prior to
the issue of any stock having voting rights, shall determine whether the
holders of any of the classes or series of the Preferred Stock and/or
the holders of the Common Stock may have or may not have the preemptive
right to subscribe for and take shares of such stock so to be issued.
Such resolution shall be set forth in full in the Prospectus relating to
such issue, and, except to the extent that the Board of Directors shall
determine as above provided, no right to subscribe for or to take any
stock, whether Preferred or Common, at any time issued by the Company
shall appertain to any of the stock of this Company.
6. That notice of the proposed action relating to said preemptive
rights was duly given in the call for said meeting.
7. That at said meeting, upon motion duly made and seconded it was
VOTED, that the Clerk of this Company or any one or more of its officers be
and they hereby are authorized and directed to make, sign and verify in
behalf of this Company, a certificate setting forth the action taken by the
stockholders of Bangor Hydro-Electric Company upon and with respect to each
of the matters set forth in the foregoing resolutions and to file such
certificate in the office of the Secretary of State within the time and in
the manner required by statute and to do all other acts and things that may
be necessary or proper to carry into effect the foregoing resolutions or
either of them, in compliance with the laws of the State of Maine.
IN WITNESS WHEREOF, I have hereunto executed the foregoing certificate
in my capacity as Clerk of Bangor Hydro-Electric Company and in its behalf,
this ninth day of May, 1961.
\ss\ Albert C. Blanchard
Clerk of Bangor Hydro-Electric Company
STATE OF MAINE
Penobscot, ss. May 9, 1961
Personally appeared the above named Albert C. Blanchard, Clerk of Bangor
Hydro-Electric Company, and made oath that the statements contained in the
above certificate by him subscribed in my presence are true.
Before me,
\ss\ Earle R. Webster
Justice of the Peace
BANGOR HYDRO-ELECTRIC COMPANY
Change in Capital Stock
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, May 28, 1961
Received and Filed this day.
\ss\
SECRETARY OF STATE
Recorded: Vol. 43, Pages 1-4.
CERTIFICATE RELATING TO CHANGE OF PURPOSES OF
BANGOR HYDRO-ELECTRIC COMPANY
---------
Bangor Hydro-Electric Company, a corporation organized and existing
under the laws of the State of Maine, and having its principal place of
business at Bangor, County of Penobscot, State of Maine, does hereby certify:
(1) That a duly called and legally convened meeting of the Company's
stockholders was held at the Company's offices at Bangor, Maine, on May 11,
1971, at which meeting the holders of a majority of the company's capital
stock entitled to vote, to wit, holders of 110,903 votes, out of a total of
139,732 6/12ths, authorized votes, were present in person or represented by
proxy.
(2) That at said meeting the Company's stockholders present in person
or represented by proxy unanimously voted as follows:
"VOTED, That the following words be added to Paragraph (b) of the
Certificate of Organization, 'and at such other location or locations as
are from time to time authorized under the Laws of the State of Maine',
so that said Paragraph will read as follows:
'(b) The construction, purchase, acquisition, ownership, improvement,
maintenance, use or operation of plants and properties for the making,
generating, selling, distribution or supplying gas or electricity or
both, for lighting, heating, manufacturing or mechanical purposes in the
Cities of Bangor, Brewer and Old Town and the Towns of Milford,
Charleston, Corinth, Orono, Bradley, Eddington, Veazie, Lincoln, Winn,
Mattawamkeag, Glenburn, Enfield, Howland, Passadumkeag, Orrington,
Hermon and Hampden in the County of Penobscot, the City of Ellsworth and
the Towns of Bar Harbor, Blue Hill, Brooklin, Bucksport, Dedham, Mount
Desert, Sedgwick, Southwest Harbor, Surry and Trenton in the County of
Hancock, and the Towns of Machias, East Machias and Machiasport in the
County of Washington and any other Cities or Towns in said Counties of
Penobscot, Hancock, and Washington, in the State of Maine, and at such
other location or locations as from time to time authorized under the
Laws of the State of Maine..."
"Further VOTED, That the present paragraph (c) of the Certificate of
Organization which reads as follows:
'(c) In connection with the foregoing the Company shall have and
exercise all of the rights, privileges and franchises of the corporation
whose rights, privileges and franchises it acquires and all powers
conferred by the Laws of the State of Maine on public utility
corporations of the character of the corporations whose properties are
acquired.'
Be repealed and the following paragraph be substituted therefor:
'(c) In addition to the foregoing, the Company shall have and exercise
all of the rights, privileges and franchises it has heretofore acquired
and shall hereafter acquire and all powers and authority conferred upon
gas/and or electric public utility corporations by the Laws of the State
of Maine."
IN WITNESS WHEREOF, said Bangor Hydro-Electric Company has caused its
corporate seal to be hereunto affixed and this Certificate to be executed by
R.N. Haskell, its President, duly authorized hereunto this 18th day of May,
1971.
BANGOR HYDRO-ELECTRIC COMPANY
By \ss\ R.N. Haskell, President
STATE OF MAINE
Penobscot, ss: May 18, 1971.
I, Albert Chick Blanchard, Clerk of Bangor Hydro-Electric Company,
hereby certify that the statements contained in the foregoing Certificate of
said Company executed by R.N. Haskell, its President, are true.
\ss\ Albert Chick Blanchard, Clerk
STATE OF MAINE
Attorney General's Office May 21, 1971
I hereby certify that I have examined the foregoing certificate, the
same is properly drawn and signed, and is conformable to the constitution and
laws of the State, and I am satisfied that such changes are made in good
faith and not for the purpose of avoiding payment of fees or taxes to the
State.
\ss\
Deputy Attorney General
BANGOR HYDRO-ELECTRIC COMPANY
Change of Purposes
103-240
STATE OF MAINE
Office of Secretary of State
Augusta, May 28, 1971
Received and Filed this day.
\ss\
DEPUTY, SECRETARY OF STATE
Recorded: Vol. 68, Pages 104-106.For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 CHANGE OF CLERK or SECRETARY OF STATE
Fee Paid $5.00 REGISTERED OFFICE FILED
C.B. 76C18 OR BOTH OF July 3, 1975
Date: 7-7-75 BANGOR HYDRO-ELECTRIC COMPANY Doris Hayes, Agent
Pursuant to 13-A MRSA 304 the undersigned corporation advises you of the
following change(s):
FIRST: The name and business address of its present Clerk are Albert
Chick Blanchard, Esq., 27 State Street, Bangor, Maine 04401.
SECOND: The name and business address of its successor Clerk* are
Robert S. Briggs, Esq., One Merchants Plaza, Bangor, Maine 04401.
THIRD: Upon a change in Clerk this must be completed:
(X) Such change was authorized by the Board of Directors and the
power to make such change is not reserved to the shareholders
by the articles or the bylaws.
( ) Such change was authorized by the shareholders. (Complete the
following)
I certify that I have custody of the minutes showing the
above action by the shareholders.
---------------------------------------
Clerk, secretary or assistant secretary
Dated: July 1, 1975
Legibly print or Bangor Hydro-Electric Company
type name and
capacity of all By \ss\ Robert S. Briggs
signers *Robert S. Briggs, Clerk
13-A MRSA 104 (type or print name and capacity)
- - ---------------------------------
*The Clerk of a domestic corporation must be a person resident in Maine.
The business address of the Clerk and the registered office must be
identical.
**The name of the corporation should be typed, and the document must be
signed by (1) the Clerk or (2) by the President or vice-president and by the
Secretary or an assistant secretary or such other officer as the bylaws may
designate as a second certifying officer of (3) if there are no such
officers, then by a majority of the Directors or by such Directors as may be
designated by a majority of Directors then in office or (4) if there are no
such Directors then by the holders, or such of them as may be designated by
the holders, of record of a majority of all outstanding shares entitled to
vote thereon or (5) by the holders of all of the outstanding shares of the
corporation.
FORM NO. MBCA-3
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 STATEMENT OF SECRETARY OF STATE
Fee Paid $5.00 RESOLUTION ESTABLISHING FILED
C.B. 442 SERIES OF SHARES OF January 8, 1976
Date: 1-12-76 BANGOR HYDRO-ELECTRIC COMPANY Doris Hayes, Agent
Pursuant to 13-A MRSA 503, the undersigned corporation submits the following
for the purpose of establishing and designating a series of shares and fixing
and determining the relative rights and preferences thereof:
FIRST: The attached resolution establishing and designating the series
and fixing and determining the relative rights and preferences thereof was
duly adopted by the Board of Directors on December 15, 1975.
SECOND: The By-Laws expressly grant to the Board of Directors the
authority to make such a resolution. This provision of the By-Laws was in
effect on and prior to December 31, 1971, has not been amended or repealed,
and therefore continues to be effective pursuant to 13-A MRSA 103 (7).
THIRD: The address of the registered office of the corporation is:
1 Merchants Plaza, Bangor, Maine 04401
Dated: January 6, 1976
Legibly print or BANGOR HYDRO-ELECTRIC COMPANY
type name and
capacity of all By \ss\ Robert S. Briggs
signers Robert S. Briggs, Esq.
13-A MRSA 104 Clerk
- - ---------------------------------
* The name of the corporation should be typed, and the document must be
signed by (1) the Clerk or (2) by the President or a vice-president and by
the Secretary or an assistant secretary or such other officer as the bylaws
may designate as a second certifying officer or (3) if there are no such
officers, then by a majority of Directors then in office or (4) if there are
no such Directors, then by the holders, or such of them as may be designated
by the holders, of record of a majority of all outstanding shares entitled to
vote thereon or (5) by the holders of all of the outstanding shares of the
corporation.
FORM NO. MBCA-7
Upon motion duly made and seconded, the following preambles and
resolutions were unanimously adopted:
WHEREAS the Company desires to secure additional funds for its general
corporate purposes; and
WHEREAS 52,660 of the 100,000 shares of the Company's authorized
Preferred Stock, $100 Par Value, are presently unissued, and may be issued in
one or more classes or series with such dividends, designations, terms,
conditions and restrictions as may be determined in their discretion by this
Board of Directors, and
WHEREAS in the judgement of this Board of Directors it is advisable to
secure such additional funds by authorizing the issue of 10,000 shares of the
Company's authorized but unissued shares of Preferred Stock, $100 Par Value,
and
WHEREAS the officers of the Company have consulted with Smith, Barney &
Co. Incorporated of New York concerning the most desirable method of offering
such additional Preferred Stock, and have determined that it should be sold
at private sale to a limited number of institutional investors;
NOW THEREFORE BE IT RESOLVED that the Company hereby creates a new
series of Preferred Stock to be designated as the 10 1/2% Preferred Stock,
consisting of 10,000 shares of the authorized but unissued Preferred Stock,
$100 Par Value, of the Company; and
FURTHER RESOLVED that the 10 1/2% Preferred Stock be sold at not less
than par value, plus accrued dividends if any, at private sale to a limited
number of institutional investors, the exact number and the more particular
identification of such investors to be determined by the President or the
Vice President and Treasurer of the Company, or either of them, and
FURTHER RESOLVED that pursuant to Article XI of the By-Laws of the
Company, said By-Laws be amended in order to set forth the dividend,
designation, terms, conditions and restrictions relative to the 10 1/2%
Preferred Stock, as follows:
(a) The first paragraph of Article XI, Section 2 is hereby amended to
read as follows:
The 100,000 shares of Preferred Stock shall be available for
classification and reclassification in different classes or series
from time to time. Subject to reclassification upon retirement by
redemption or otherwise, 25,000 shares shall be 7% Preferred Stock,
17,500 shares shall be 4% Preferred Stock, Series A, 4,840 shares
shall be 4 1/4% Preferred Stock and 10,000 shares shall be 10 1/2%
Preferred Stock.
(b) The first line of the second paragraph of Article XI, Section 2, is
hereby amended to read as follows:
The remaining shares, 42,660 in number, plus additional shares....
(c) Article XI, Section 5, is hereby amended by deleting the same and
substituting therefore the following:
Section 5. In case of liquidation or dissolution of the Company,
the assets, irrespective of whether they shall consist of capital
assets or accumulated earnings, shall be distributed as follows:
All holders of Preferred Stock shall be entitled to be paid in full
both the par amount of their shares and an amount equal to the
unpaid dividends accumulated and accrued thereon and, in case of
the 10 1/2% Preferred Stock, if such liquidation or dissolution is
voluntary, an amount equal to the premium specified in Section
6(a), before any amount shall be paid to the holders of the Common
Stock, and in case the assets shall not be sufficient to pay in
full all of the Preferred Stock and dividends accumulated and
accrued thereon, then the principal thereof shall first be paid and
a pro rata distribution of any excess shall be made on account of
the accumulated dividends, based on the total amount of unpaid
dividends accumulated and accrued thereon, but after such payment
to the holders of the Preferred Stock, the remaining assets and
funds shall be paid to the holders of the Common Stock, according
to their respective shares.
(d) Article XI, Section 4, is hereby amended by deleting the same and
substituting therefor the following:
Section 4(a). If any dividend is declared on the Preferred Stock
at a rate less than sufficient to pay the full dividend called for
by all the Preferred Stock outstanding, the distribution of the
dividends shall be pro rata, so that all holders of Preferred Stock
shall receive the same proportion of the full dividend called for
by their stock.
(b) If at any time dividends payable on the Preferred
Stock shall be in default in an amount equal to or exceeding four
quarterly dividend payments, then, until all dividends so in
default have been paid or declared and set apart for payment, the
holders of shares of Preferred Stock of each and every class or
series, voting as a single class, shall be entitled, at any annual
meeting during which dividends are so in default, to elect two
Directors.
(e) Article XI. Section 6 is hereby amended by deleting same and
substituting therefor the following:
Section 6. (a) The 7% Preferred Stock shall bear dividends at the
rate of 7% per annum and shall not be redeemable. The 4% Preferred
Stock, Series A, shall bear dividends at the rate of 4% per annum
and shall be redeemable at 112% if called on or prior to October 1,
1950; at 111% thereafter through October 1, 1951; and after October
1, 1951 at 110%, plus accrued dividends in every case. The 4 1/4%
Preferred Stock shall bear dividends at the rate of 4 1/4% per
annum and shall be redeemable at 102% if called on or prior to
April 1, 1954; at 101% thereafter through April 1, 1959; and after
April 1, 1959 at 100%, plus accrued dividends in every case. The
10 1/2% Preferred Stock shall bear dividends at the rate of 10 1/2%
Preferred Stock shall bear dividends at the rate of 10 1/2% per
annum and shall be redeemable at the option of the Company as
follows:
At 110.5% if called on or prior to
December 31, 1976; at 109.8% thereafter through December 31,
1977; at 109.1% thereafter through December 31, 1978; at
108.4% thereafter through December 31, 1979; at 107.7%
thereafter through December 31, 1980; at 107.0% thereafter
through December 31, 1981; at 106.3% thereafter through
December 31, 1982; at 105.6% thereafter through December 31,
1983; at 104.9% thereafter through December 31, 1984; at
104.2% thereafter through December 31, 1985; at 103.5%
thereafter through December 31, 1986; at 102.8% thereafter
through December 31, 1987; at 102.1% thereafter through
December 31, 1988; at 101.4% thereafter through December 31,
1989; at 100.7% thereafter through December 31, 1990; and
after December 31, 1990 at 100%, plus accrued dividends in
every case;
provided, however, that except as provided in Section 6 (b) below,
the Company may not redeem any of the
10 1/2% Preferred Stock prior to December 31, 1985, as a part of,
or in anticipation of, any refunding operation involving the
application, directly or indirectly, of money borrowed by the
Company having an interest cost (calculated in accordance with
generally accepted financial practice), or through the issuance of
preferred stock ranking equally with or prior to the 10 1/2%
Preferred Stock having a dividend cost (calculated as aforesaid) of
less than 10 1/2% per annum. Preferred Stock, which is the subject
of redemption, may be called in whole or in part upon any dividend
date by appropriate resolution adopted by the Board of Directors at
any regular or special meeting upon 60 days' notice to the owners
thereof of record to be given by mailing copies of the notice of
redemption, postage prepaid, addressed to such owners at their
addresses as shown on the books of the Company. If less than all
of the outstanding shares of any class or series of Preferred Stock
shall be redeemed at any time, the stock to be so redeemed shall be
determined by lot, in such manner as the Board of Directors may
determine and prescribe, except that the shares of the 10 1/2%
Preferred Stock to be redeemed may be determined by lot or pro rata
or in such other manner as the Board of Directors may determine and
prescribe.
(b) The 10 1/2% Preferred Stock shall also be subject to
redemption through the operation of a sinking fund (herein called
the Sinking Fund) at the redemption price (the Sinking Fund
Redemption Price) of $100 per share plus an amount equal to the
dividends accrued and unpaid thereon to the redemption date,
whether or not earned or declared. For the purposes of the Sinking
Fund, out of any net assets of the Company legally available
therefor remaining after full cumulative dividends upon all
Preferred Stock then outstanding to the end of the current dividend
period therefor shall have been paid or declared and set apart for
payment the Company shall set aside in cash annually on December 31
in each year commencing with December 31, 1981, an amount
sufficient to redeem at the Sinking Fund Redemption Price, 500
shares of the 10 1/2% Preferred Stock. The Sinking Fund shall
be cumulative so that if on any such December 31 the net assets of
the Company legally available therefor shall be insufficient to
permit any such amount to be set aside in full, or if for any other
reason such amount shall not have been set aside in full, the
amount of the deficiency shall be set aside, but without interest,
before any dividend shall be paid or declared, or any distribution
made, on any junior shares or any junior shares shall be purchased,
redeemed or otherwise acquired by the Company, or any monies shall
be paid to or set aside or made available for a sinking fund for
the purchase or redemption of any junior shares. Notwithstanding
the foregoing, the Company may at any time (1) pay dividends in
junior shares or (2) purchase, redeem or otherwise acquire junior
shares in exchange for, or out of the net cash proceeds from the
concurrent sale of, other junior shares. As used herein, the term
"junior shares" shall mean Common Stock or any other shares ranking
junior to the 10 1/2% Preferred Stock either as to dividends or
upon liquidation, dissolution or winding up. Monies in the Sinking
Fund shall be applied on such December 31 to the redemption of
shares of the 10 1/2% Preferred Stock. The Company shall, prior to
each such Sinking Fund redemption, give notice of redemption of
such number of shares of the 10 1/2% Preferred Stock as may be
required to satisfy the Sinking Fund.
(c) In addition, the Company shall have the right, at
its option, to redeem at the Sinking Fund Redemption Price on
December 31, 1981 and on any December 31 thereafter an additional
number of shares of the 10 1/2% Preferred Stock up to but not
exceeding 500 shares. This right shall not be cumulative and shall
be lost to the extent not exercised on any such December 31. Any
redemption of shares of the 10 1/2% Preferred Stock pursuant to
this Section 6 (c) shall not operate to reduce the number of shares
which the Company is obligated to redeem pursuant to Section 6 (b).
A true copy.
Attest: \ss\ Robert S. Briggs
Robert S. Briggs, Clerk
EXHIBIT AFor use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 STATEMENT OF SECRETARY OF STATE
Fee Paid $5.00 RESOLUTION REVOKING THE FILED
C.B. 619 ESTABLISHMENT OF SERIES OF March 31, 1976
Date: X-X-76 SERIES OF Doris Hayes, Agent
BANGOR HYDRO-ELECTRIC COMPANY
Pursuant to 13-A MRSA 503, the undersigned corporation submits the following
for the purpose of revoking the establishment and designation of a series of
shares.
FIRST: The attached resolution revoking the establishment and
designation of the Bangor Hydro-Electric Company 10 1/2% Preferred Stock was
duly adopted by the Board of Directors on February 2, 1976.
SECOND: Authority is vested in the Board of Directors to make such a
resolution by virtue of their authority to establish and designate the series
from the authorized but unissued preferred stock of the Company, and by
virtue of the fact that said 10 1/2% preferred stock has not and will not be
issued.
THIRD: the address of the registered office of the Company is:
One Merchants Plaza, Bangor, Maine 04401
Dated: March 24, 1976
Legibly print or Bangor Hydro-Electric Company
type name and
capacity of all By \ss\ Robert S. Briggs
signers *Robert S. Briggs, Clerk
13-A MRSA 104
- - ---------------------------------
* The name of the corporation should be typed, and the document must be
signed by (1) the Clerk or (2) by the President of a vice-president and by
the Secretary or an assistant secretary or such other officer as the by-laws
may designate as a second certifying officer or (3) if there are no such
officers, then by a majority of Directors then in office or (4) if there are
no such Directors, then by the holders, or such of them as may be designated
by the holders, of record of a majority of all outstanding shares entitled to
vote thereon or (5) by the holders of all of the outstanding shares of the
corporation.
FORM NO. MBCA-7
Upon motion duly made and seconded, the following preambles and
resolutions were unanimously adopted:
WHEREAS the Board of Directors by its actions on November 17 and
December 15, 1975, adopted resolutions and took other actions relevant to the
establishment of a new series of Preferred Stock from the Company's
authorized but unissued shares, which series is known as the 10 1/2%
Preferred Stock, and
WHEREAS said shares of the 10 1/2% Preferred Stock were to be sold at
private sale to a limited number of institutional investors, and
WHEREAS the Company had taken all steps necessary in order to effect the
issuance of said shares, including the obtaining of approval from the Maine
Public Utilities Commission by its Order dated January 15, 1976, and the
filing with the Secretary of State of Maine of a Statement of Resolution
Establishing Series of Shares, on January 8, 1976, and
WHEREAS a final agreement between the Company and the proposed
institutional purchasers was not reached and therefore no shares of the 10
1/2% Preferred Stock were issued, and
WHEREAS the Company has accordingly withdrawn its offer to sell the
shares of the 10 1/2% Preferred Stock to any party, and has received from the
Maine Public Utilities Commission its Supplemental Decree revoking its prior
order approving the issuance of shares of the 10 1/2% Preferred Stock, and
WHEREAS the Company desires to return said shares to the status of
undesignated authorized by unissued shares of Preferred Stock of the Company;
NOW THEREFORE BE IT RESOLVED that the Company hereby revokes, rescinds
and declares of no effect so much of those resolutions adopted by this Board
of Directors at its meetings held on November 17 and December 15, 1975 as
respects the creation of a new series of Preferred Stock designated as the
10 1/2% Preferred Stock, and the establishment of the terms, conditions,
restrictions and dividends relative to said 10 1/2% Preferred Stock; and
FURTHER RESOLVED that the officers of the Company are authorized and
instructed to execute all documents and reports and take such other action as
may be necessary to rescind the establishment of said 10 1/2% Preferred
Stock, with the same effect and to the same extent as if said 10 1/2%
Preferred Stock and never been established.
A true copy.
Attest: \ss\ Robert S. Briggs, Clerk
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 STATEMENT OF SECRETARY OF STATE
Fee Paid $5.00 RESOLUTION FILED
C.B. 717 ESTABLISHING SERIES May 12, 1976
Date: X-X-76 OF SHARES OF Doris Hayes, Agent
BANGOR HYDRO-ELECTRIC COMPANY
Pursuant to 13-A MRSA 503, the undersigned corporation submits the following
for the purpose of establishing and designating a series of shares and fixing
and determining the relative rights and preferences thereof:
FIRST: The attached resolution establishing and designating the series
and fixing and determining the relative rights and preferences thereof was
duly adopted by the Board of Directors on May 11, 1976.
SECOND: The By-Laws expressly grant to the Board of Directors the
authority to make such a resolution. This provision of the By-Laws was in
effect on and prior to December 31, 1971, has not been amended or repealed,
and therefore continues to be effective pursuant to 13-A MRSA 103 (7).
THIRD: The address of the registered office of the corporation is:
1 Merchants Plaza, Bangor, Maine 04401
Dated: May 11, 1976
Legibly print or Bangor Hydro-Electric Company
type name and
capacity of all By \ss\ Robert S. Briggs
signers Robert S. Briggs, Clerk
13-A MRSA 104
- - ---------------------------------
* The name of the corporation should be typed, and the document must be
signed by (1) the Clerk or (2) by the President of a vice-president and by
the Secretary or an assistant secretary or such other officer as the by-laws
may designate as a second certifying officer or (3) if there are no such
officers, then by a majority of Directors then in office or (4) if there are
no such Directors, then by the holders, or such of them as may be designated
by the holders, of record of a majority of all outstanding shares entitled to
vote thereon or (5) by the holders of all of the outstanding shares of the
corporation.
FORM NO. MBCA-7
WHEREAS the Company desires to secure additional funds for its general
corporate purposes, including, among other things, capital expenditures, and
WHEREAS 52,660 of the 100,000 shares of the Company's authorized
Preferred Stock $100 par value, are presently unissued, and may be issued in
one or more classes or series with such dividends, designations, terms,
conditions and restrictions as may be determined in their discretion by this
Board of Directors, and
WHEREAS in the judgment of this Board of Directors it is advisable to
secure such additional funds by authorizing the issue of 20,000 shares of the
Company's authorized but unissued shares of Preferred Stock, $100 par value,
and
WHEREAS the officers of the Company have consulted with Smith Barney,
Harris Upham & Co. Incorporated of New York concerning the most desirable
method of offering such additional Preferred Stock, and have determined that
it should be sold at private sale to a limited number of institutional
investors;
NOW THEREFORE BE IT RESOLVED that the Company hereby creates a new
series of Preferred Stock to be designated as the 9 1/4% Preferred Stock,
consisting of 20,000 shares of the authorized but unissued Preferred Stock,
$100 par value, of the Company; and
FURTHER RESOLVED that the 9 1/4% Preferred Stock be sold at not less
than par value, plus accrued dividends if any, at private sale to a limited
number of institutional investors, the exact number and the more particular
identification of such investors to be determined by the Chairman of the
Board and Chief Executive officer or the President of the Company, or either
of them,
FURTHER RESOLVED that the pursuant to Article XI of the By-Laws of the
Company, said By-Laws be amended in order to set forth the dividend,
designation, terms, conditions and restrictions relative to the 9 1/4%
Preferred Stock, as follows:
(a) The first paragraph of Article XI, Section 2 is hereby amended to
read as follows:
Section 2. The 100,000 shares of Preferred Stock shall be
available for classification and reclassification in different classes
or series from time to time. Subject to reclassification upon
retirement by redemption or otherwise, 25,000 shares shall be 7%
Preferred Stock, 17,500 shares shall be 4% Preferred Stock, Series A,
4,840 shares shall be 4 1/4% Preferred Stock and 20,000 shares shall be
9 1/4% Preferred Stock.
(b) The first line of the second paragraph of Article XI, Section 2, is
hereby amended to read as follows:
The remaining shares, 32,660 in number, plus additional
shares....
(c) Article XI, Section 4 is hereby amended by deleting the same and
substituting therefor the following:
Section 4. (a) If any dividend is declared on the Preferred Stock
at a rate less than sufficient to pay the full dividend called for by
all the Preferred Stock outstanding, the distribution of the dividend
shall be pro rata, so that all holders of Preferred Stock shall receive
the same proportion of the full dividend called for by their stock.
(b) If at any time dividends payable on the Preferred Stock shall
be in default in an amount equal to or exceeding four quarterly dividend
payments, or if the Company shall fail to make any required sinking fund
payment on the Preferred Stock, then, until all dividends or sinking
fund payments so in default have been paid or declared and set apart for
payment, the holders of shares of Preferred Stock of each and every
class or series, voting as a single class, shall be entitled, at any
annual meeting during which dividends are so in default, to elect two
Directors.
(c) Notwithstanding the provisions of Section 5 of Article III of
these By-Laws, except as provided in paragraph (b) of this Section 4,
the holders of the 9 1/4% Preferred Stock shall not be entitled to vote
at any meeting of stockholders.
(d) Article XI, Section 5 is hereby amended by deleting the same
and substituting therefore the following:
Section 5. In case of liquidation or dissolution of the Company,
the assets, irrespective of whether they shall consist of capital assets
or accumulated earnings, shall be distributed as follows: All holders
of Preferred Stock shall be entitled to paid in full both the par amount
of their shares and an amount equal to the unpaid dividends accumulated
and accrued thereon and, in the case of the 9 1/4% Preferred
stock, if such liquidation or dissolution is voluntary, an amount equal
to the premium specified in Section 6(a) below before any amount shall
be paid to the holders of the Common Stock, and in case the assets shall
not be sufficient to pay in full all of the Preferred Stock and
dividends accumulated and accrued thereon, then the principal thereof
shall first be paid and a pro rata distribution of any excess shall be
made on account of the accumulated dividends, based on the total amount
of unpaid dividends accumulated and accrued thereon, but after such
payment to the holders of the Preferred Stock, the remaining assets and
funds shall be paid to the holders of the Common Stock, according to
their respective shares.
(e) Article XI, Section 6 is hereby amended by deleting the same
and substituting therefor the following:
Section 6. (a) The 7% Preferred Stock shall bear dividends at the
rate of 7% per annum and shall not be redeemable. The 4% Preferred
Stock, Series A, shall bear dividends at the rate of 4% per annum and
shall be redeemable at 112% if called on or prior to October 1, 1950; at
111% thereafter through October 1, 1951; and after October 1, 1951 at
110%, plus accrued dividends in every case. The 4 1/4% Preferred Stock
shall bear dividends at the rate of 4 1/4% per annum and shall be
redeemable at 102% if called on or prior to April 1, 1954; at 101%
thereafter through April 1, 1959; and after April 1, 1959 at 100%, plus
accrued dividends in every case. The 9 1/4% Preferred Stock shall bear
dividends at the rate of 9 1/4% per annum and shall be redeemable at the
option of the Company as follows:
At 109.25% if called on or prior to December 1, 1976; at 108.63%
thereafter through December 1, 1977;
at 108.01% thereafter through December 1, 1978;
at 107.39% thereafter through December 1, 1979;
at 106.77% thereafter through December 1, 1980;
at 106.15% thereafter through December 1, 1981;
at 105.53% thereafter through December 1, 1982;
at 104.91% thereafter through December 1, 1983;
at 104.29% thereafter through December 1, 1984;
at 103.67% thereafter through December 1, 1985;
at 103.05% thereafter through December 1, 1986;
at 102.43% thereafter through December 1, 1987;
at 101.81% thereafter through December 1, 1988;
at 101.19% thereafter through December 1, 1989;
at 100.57% thereafter through December 1, 1990;
and after December 1, 1990 at 100% plus accrued dividends in every
case;
provided, however, that except as provided in Section 6(b) below, the
Company may not redeem any of the 9 1/4% Preferred Stock prior to
December 1, 1986, as a part of, or in anticipation of, any refunding
operation involving the application, directly or indirectly, of money
borrowed by the Company having an interest cost (calculated in
accordance with generally accepted financial practice), or through the
issuance of preferred stock ranking equally with or prior to the 9 1/4%
Preferred Stock having a dividend cost (calculated as aforesaid) of less
than 9 1/4% per annum. Preferred Stock, which is the subject of
redemption, may be called in whole or in part upon any dividend date by
appropriate resolution adopted by the Board of Directors at any regular
or special meeting upon 60 days' notice to the owners thereof of record
to be given by mailing copies of the notice of redemption, postage
prepaid, addressed to such owners at their addresses as shown on the
books of the Company. If less than all of the outstanding shares of any
class or series of Preferred Stock shall be redeemed at any time, the
stock to be so redeemed shall be determined by lot, in such manner as
the Board of Directors may determine and prescribe, except that the
shares of the 9 1/4% Preferred Stock to be redeemed may be determined by
lot or pro rata or in such other manner as the Board of Directors may
determine and prescribe.
(b) The 9 1/4% Preferred Stock shall also be subject to redemption
through the operation of a sinking fund (herein called the Sinking Fund) at
the redemption price (the Sinking Fund Redemption Price) of $100 per share
plus an amount equal to the dividends accrued and unpaid thereon to the
redemption date, whether or not earned or declared. For the purposes of the
Sinking Fund, out of any net assets of the Company legally available therefor
remaining after full cumulative dividends upon all Preferred Stock then
outstanding to the end of the current dividend period therefor shall have
been paid or declared and set apart for payment the Company shall set aside
in cash annually on December 1 in each year commencing with December 1, 1982,
an amount sufficient to redeem, at the Sinking Fund Redemption Price, 1,000
shares of the 9 1/4% Preferred Stock. The Sinking Fund shall be cumulative
so that if on any such December 1 the net assets of the Company legally
available therefor shall be insufficient to permit any such amount to be set
aside in full, or if for any other reason such amount shall not have been set
aside in full, the amount of deficiency shall be set aside, but without
interest, before any dividend shall be paid or declared, or any distribution
made, on any junior shares or any junior shares shall be purchased, redeemed,
or otherwise acquired by the Company, or any monies shall be paid to or set
aside or made available for a sinking fund for the purchase or redemption of
any junior shares. Notwithstanding the foregoing, the Company may at any
time (1) pay dividends in junior shares or (2) purchase, redeem or otherwise
acquire junior shares in exchange for, or out of the net cash proceeds from
the concurrent sale of, other junior shares. As used herein, the term
"junior shares" shall mean Common Stock or any other shares ranking junior to
the 9 1/4% Preferred Stock either as to dividends or upon liquidation,
dissolution or winding up. Monies in the Sinking Fund shall be applied on
such December 1 to the redemption of shares of the 9 1/4% Preferred Stock.
The Company shall, prior to each such Sinking Fund redemption, give notice of
redemption of such number of shares of the 9 1/4% Preferred Stock as may be
required to satisfy the Sinking Fund.
(c) In addition, the Company shall have the right, at its option, to
redeem at the Sinking Fund Redemption Price on December 1, 1982 and on any
December 1 thereafter an additional number of shares of the 9 1/4% Preferred
Stock up to but not exceeding 1,000 shares. This right shall not be
cumulative and shall be lost to the extent not exercised on any such December
1. Any redemption of shares of the 9 1/4% Preferred Stock pursuant to this
Section 6(c) shall not operate to reduce the number of
shares which the Company is obligated to redeem pursuant to Section 6(b).
A true copy.
Attest: \ss\ Robert S. Briggs
Robert S. Briggs, Esq.
Clerk
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 ARTICLES OF AMENDMENT SECRETARY OF STATE
Fee Paid $3750 - 10. (Amendment by Share- FILED
C.B. 664 holders Voting as May 12, 1977
Date: 5-18-77 Separate Class) OF Doris Hayes, Agent
BANGOR HYDRO-
ELECTRIC COMPANY
a Quasi-Public Corporation
Pursuant to 13-A MRSA 805 and 807, the undersigned corporation adopts these
Articles of Amendment.
FIRST: As set out in detail in "THIRD", one or more classes of shares
of the corporation were entitled to vote on the following amendment as a
separate class.
SECOND: The amendment to the Articles of Incorporation of the
corporation set out in Exhibit A attached hereto was adopted by the
shareholders thereof at a meeting legally called and held on April 26, 1977.
THIRD: On said date, the number of shares of each class outstanding and
entitled to vote on such amendment (whether or not entitled to vote as a
separate class), the manner in which each such class was entitled to vote
(whether or not as a separate class), and the number of shares voted for and
against said amendment, respectively, were as follows:
Designation of Manner No. of Shares
Each Class In Which Outstanding
However Entitled Entitled And Entitled Voted Voted
to vote To Vote To Vote For Against
- - ----------------- --------- ------------- ------ --------
Common as a separate 1,233,710 920,772 35,608
class
Preferred N/A 47,340 34,436 1,003
--------- ------- -------
Total of All Classes 1,281,050 955,208 36,611
========= ======== =======
FOURTH: If such amendment provides for exchange, reclassification or
cancellation of issued shares the manner in which the same shall be effected
is contained in Exhibit B attached hereto, if it is not set forth in the
amendment itself.
*FIFTH: If such amendment effects a change in the number or par values
of authorized shares the number of shares which the
corporation has authority to issue after giving effect to such amendment is
as follows:
Series Number Par Value
Class (If any) of Shares (If any)
- - ----- -------- --------- ---------
Common N/A 2,500,000 $ 5
Preferred 100,000 100
The aggregate par value of all such shares (of all classes and series)
having par value is $22,500,000.
The total number of all such shares (of all classes and series) without
par value is N/A shares.
SIXTH: The address of the registered office of the corporation in the
State of Maine is One Merchants Plaza, Bangor, Maine 04401.
Dated: April 28, 1977
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Robert S. Briggs
signers Robert S. Briggs, Clerk
I certify that I have custody of the minutes showing the above action by the
shareholders.
\ss\ Robert S. Briggs
Robert S. Briggs, Clerk
EXHIBIT A.
RESOLVED that the Certificate of Organization of the Company as amended
to date, be further amended too increase the Company's authorized
capital stock by $5,000,000, such increase to be represented by
1,000,000 shares of Common Stock of the par value of $5 each, so that
the total amount of authorized capital stock of this Company will be
$22,500,000 represented by 100,000 shares of Preferred Stock of the par
value of $100 each and 2,500,000 shares of Common Stock of the par value
of $5 each.
NOTE: Shares may be entitled to vote as a separate class for any of the
reasons stated in 806, or if so provided in the Articles. For vote
necessary for adoption, see 805.
- - ------------------------------------
* To be completed only if Exhibit A or B do not give this required
information.
** The name of the corporation should be typed, and the document must be
signed by (1) Clerk or (2) by the President of a vice-president and by
the Secretary or an assistant secretary or such other officer as the
bylaws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of the Directors or by such
Directors as may be designated by majority of Directors then in office
or (4) if there are not such Directors, then by the holders, or such of
them as may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
of the outstanding shares of the corporation.
FORM NO. MBCA-9A
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 NOTIFICATION BY CLERK SECRETARY OF STATE
Fee Paid $5.00 OF CHANGE IN FILED
C.B. 80C176 REGISTERED OFFICE August 14, 1979
Date: 8-16-79 Agent
Pursuant to 13-A MRSA 304(6), the undersigned Clerk for one or more domestic
corporations give notice of the following change of business address which is
the registered office of each corporation listed:
FIRST: Name of Clerk* Robert S. Briggs, Esq.
SECOND: Address of former registered office:
One Merchants Plaza
Bangor, Maine 04401
THIRD: Address of new registered office:
33 State Street; PO Box 932
Bangor, Maine 04401
FOURTH: Notice of the above change in registered office has been sent
to each of the following corporations by the undersigned as Clerk of each:
Bangor Hydro-Electric Company
East Branch Improvement Company
Sawtelle Brook Dam and Improvement Company
Godfrey's Falls Dam Company
Sebois Dam Company
Pleasant River Gulf Improvement Company
Dated: August 13, 1979 \ss\ Robert S. Briggs
Robert S. Briggs
(type or print name)
- - --------------------------------
*The Clerk of a domestic corporation must be a person resident in Maine. The
business address of the Clerk and the registered office must be identical.
FORM NO. MBCA-3BFor use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 STATEMENT OF RESOLUTION SECRETARY OF STATE
Fee Paid $5.00 ESTABLISHING SERIES OF FILED
C.B. 115 SHARES OF BANGOR HYDRO- August 23, 1979
Date: 8-23-79 ELECTRIC COMPANY Agent
(9 1/2% Preferred Stock)
Pursuant to 13-A MRSA 503, the undersigned corporation submits the following
for the purpose of establishing and designating a series of shares and fixing
and determining the relative rights and preferences thereof:
FIRST: The attached resolutions establishing and designating the series
and fixing and determining the relative rights and preferences thereof were
duly adopted by the Board of Directors on July 24, 1979 and August 14, 1979.
SECOND: The By-Laws expressly grant to the Board of Directors the
authority to make such resolutions. This provision of the By-Laws was in
effect on and prior to December 31, 1971, has not been amended or repealed,
and therefore continues to be effective pursuant to 13-A MRSA 103(7).
THIRD: The address of the registered office of the corporation is: 33
State Street, PO Box 932, Bangor, Maine 04401
Dated: August 20, 1979
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Robert S. Briggs
signers Robert S. Briggs, Clerk
- - -------------------------------
*The name of the corporation should be typed, and the document must be signed
by (1) the Clerk or (2) by the President or a vice-president and by the
Secretary or an assistant secretary of such other officer as the by-laws may
designate as a second certifying officer or (3) if there are no such
officers, then by a majority of Directors then in office or (4) if there are
not such Directors, then by the holders, or such of them as may be designated
by the holders, of record of a majority of all outstanding shares entitled to
vote thereon or (5) by the holders of all of the outstanding shares of the
corporation.
FORM NO. MBCA-7 BANGOR HYDRO-ELECTRIC COMPANY
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS
JULY 24, 1979
WHEREAS the Company desires to secure additional funds for its general
corporate purposes, including, among other things, capital expenditures; and
WHEREAS 32,660 of the 100,000 shares of the Company's authorized
Preferred Stock $100 par value, are presently unissued, and may be issued in
one or more classes or series with such dividends, designations, terms,
conditions and restrictions as may be determined in their discretion by this
Board of Directors; and
WHEREAS in the judgment of this Board of Directors it is advisable to
secure a portion of such additional funds by authorizing the issue of 30,000
shares of the Company's authorized but unissued shares of Preferred Stock,
$100 par value; and
WHEREAS the officers of the Company have consulted with Smith Barney,
Harris Upham & Co., Incorporated of New York concerning the most desirable
method of offering such additional Preferred Stock, and have determined that
it should be sold at private sale to a limited number of institutional
investors;
NOW THEREFORE BE IT RESOLVED that the Company hereby creates a new
series of Preferred Stock to be designated as the 9 1/2% Preferred Stock,
consisting of 30,000 shares of the authorized but unissued Preferred Stock,
consisting of 30,000 shares of the authorized but unissued Preferred Stock,
$100 par value of the Company; and
FURTHER RESOLVED that the 9 1/2% Preferred Stock be sold at not less
than par value at private sale to limited number of institutional investors,
the exact number and the more particular identification of such investors to
be determined by the Chairman of the Board or the President of the Company,
or either of them; and
FURTHER RESOLVED that none of the holders of any of the classes or
series of the Preferred Stock, and none of the holders of the Common Stock,
of the Company shall have the preemptive right to subscribe for and take
shares of the 9 1/2% Preferred Stock; and
FURTHER RESOLVED that the Company does hereby appoint and designate
Smith Barney, Harris Upham & Co. Incorporated of New York as its
representative in this sale of the 9 1/2% Preferred Stock, and does hereby
authorize said Smith Barney, Harris Upham & Co. Incorporated to dispose of
said 9 1/2% Preferred Stock at private sale at par value plus accrued
dividends, if any; and
FURTHER RESOLVED that the appropriate officers of the Company be, and
they hereby are authorized and directed to file with the Maine Public
Utilities Commission an application for approval of the issuance of the 9
1/2% Preferred Stock, including any and all amendments thereto, and to do all
other acts necessary or desirable in order to secure the approval of said
Maine Public Utilities Commission; and
FURTHER RESOLVED that upon receipt of the Order of said Maine Public
Utilities Commission relative to the issuance and sale of the 9 1/2%
Preferred Stock, said Order to be recorded upon the books of the Company by
its Clerk or Assistant Clerk; and
FURTHER RESOLVED that the appropriate officers of the Company and each
of them be and they hereby are authorized and directed to make, sign,
execute, verify, acknowledge and deliver, or cause to be made, signed,
executed, verified, acknowledged and delivered, any and all of such orders,
certificates, directions, requests and other appropriate instruments and to
do all such acts and things as may be reasonably required from time to time
hereafter to give effect to the foregoing votes, or any of them, or to
otherwise effect the issuance and sale of the 9 1/2% Preferred Stock.
A true copy.
Attest: \ss\ Robert S. Briggs, Clerk
BANGOR HYDRO-ELECTRIC COMPANY
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS
AUGUST 14, 1979
RESOLVED that pursuant to Article XI of the By-Laws of the Company, said
By-Laws be amended in order to set forth the dividend, designation, terms,
conditions and restrictions relative to the 9 1/2% Preferred Stock, as
follows:
(a) The first paragraph of Article XI, Section 2 is hereby amended to
read as follows:
"Section 2. The 100,000 shares of Preferred Stock shall be
available for classification and reclassification in different
classes or series from time to time. Subject to reclassification
upon retirement by redemption or otherwise, 25,000 shares shall be
7% Preferred Stock, 17,500 shares shall be 4% Preferred Stock,
Series A, 4,840 shares shall be 4 1/4% Preferred Stock, 20,000
shares shall be 9 1/4% Preferred Stock and 30,000 shares shall be 9
1/2% Preferred Stock."
(b) The first line of the second paragraph of Article XI, Section 2, is
hereby amended to read as follows:
"The remaining shares, 2,660 in number, plus additional shares...."
(c) The first sentence of the third paragraph of Article XI, Section 2,
is hereby amended to read as follows:
"In fixing and determining the special voting powers of any class
or series of Preferred Stock, the Board of Directors is
specifically authorized to provide that if at any time dividends or
required sinking fund payments payable on the Preferred Stock shall
be in default in any amount to be specified in the By-Laws, then,
until all dividends or required sinking fund payments so in default
shall have been paid or declared and set apart for payment, the
holders of shares of Preferred Stock of each and every class or
series, voting as single class, shall be entitled to elect in such
manner as the Board of Directors may provide, the smallest number
of Directors necessary to constitute a majority of the full Board
of Directors, the balance of the Directors to be elected by the
holders of shares having general voting powers."
(d) The third and fourth sentences of Article XI, Section 3, are hereby
amended to read as follows:
"Except as provided in paragraph (b) of Section 6, the Board of
Directors may declare dividends upon the Common Stock, provided the
dividends upon the Preferred Stock, with all accumulations,
including accrued dividends to the date of payment of the Common
Stock dividends, shall have been paid in full, or a sum sufficient
for the payment thereof shall have been set apart for the purpose,
but not otherwise. Except as provided in paragraph (b) of Section
6, the holders of the Common Stock are entitled to receive all
additional surplus or net profits which the Directors may order
distributed in dividends, after the dividends above provided for
shall have been paid or set apart."
(e) Article XI, Section 4, subparagraphs (b) and (c) are hereby amended
by deleting the same and substituting therefor the following:
"(b) If at any time dividends payable on the Preferred Stock shall
be in default in an amount equal to or exceeding four quarterly
dividend payments, or if the Company shall fail to make any
required sinking fund payment on the Preferred Stock, then, until
all dividends or sinking fund payments so in default have been paid
or declared and set apart for payment, the holders of shares of
Preferred Stock of each and every class or series, voting as a
single class, shall be entitled, at any annual meeting during which
dividends or sinking fund payments are so in default, to elect two
Directors.
"(c) Notwithstanding the provisions of Section 5 of Article III of
these By-Laws, except as provided in paragraph (b) of this Section
4, the holders of the 9 1/4% Preferred Stock and the 9 1/2%
Preferred Stock shall not be entitled to vote at any meeting of
stockholders."
(f) Article XI, Section 5 is hereby amended by deleting the same and
substituting therefor the following:
"Section 5. In case of liquidation or dissolution of the Company,
the assets, irrespective of whether they shall consist of capital
assets or accumulated earnings, shall be distributed as follows:
All holders of Preferred Stock shall be entitled to be paid in full
both the par amount of their shares and an amount equal to the
unpaid dividends accumulated and accrued thereon and, in the case
of the 9 1/4% Preferred Stock and the 9 1/2% Preferred Stock, if
such liquidation or dissolution is voluntary, an amount equal to
the premium specified in Section 6(a) below, before any amount
shall be paid to the holders of the Common Stock, and in case the
assets shall not be sufficient to pay in full all of the Preferred
Stock and dividends accumulated and accrued thereon, and applicable
premium, then the principal thereof shall first be paid, thereafter
a pro rata distribution of any excess shall be made on account of
the accumulated dividends, based on the total amount of unpaid
dividends accumulated and accrued thereon, and thereafter a pro
rata distribution of any excess shall be made on account of
applicable premium, based on the total amount of applicable
premium, but after such payment to the holders of the Preferred
Stock, the remaining assets and funds shall be paid to the holders
of the Common Stock, according to their respective shares."
(g) Article XI, Section 6 is hereby amended by deleting the same and
substituting therefor the following:
"Section 6. (a) The 7% Preferred Stock shall bear dividends at the
rate of 7% per annum and shall not be redeemable. The 4% Preferred
Stock, Series A, shall bear dividends at the rate of 4% per annum
and shall be redeemable at 112% if called on or prior to October 1,
1950; at 111% thereafter through October 1, 1951; and after October
1, 1951 at 110%, plus accrued dividends in every case. The 4 1/4%
Preferred Stock shall bear dividends at the rate of 4 1/4% per
annum and shall be redeemable at 102% if called on or prior to
April 1, 1954; at 101% thereafter through April 1, 1959; and after
April 1, 1959 at 100%, plus accrued dividends in every case. The 9
1/4% Preferred Stock shall bear dividends at the rate of 9 1/4% per
annum and shall be redeemable at the option of the Company as
follows:
At 109.25% if called on or prior to December 1, 1976; at 108.63%
thereafter through December 1, 1977;
at 108.01% thereafter through December 1, 1978;
at 107.39% thereafter through December 1, 1979;
at 106.77% thereafter through December 1, 1980;
at 106.15% thereafter through December 1, 1981;
at 105.53% thereafter through December 1, 1982;
at 104.91% thereafter through December 1, 1983;
at 104.29% thereafter through December 1, 1984;
at 103.67% thereafter through December 1, 1985;
at 103.05% thereafter through December 1, 1986;
at 102.43% thereafter through December 1, 1987;
at 101.81% thereafter through December 1, 1988;
at 101.19% thereafter through December 1, 1989;
at 100.57% thereafter through December 1, 1990;
and after December 1, 1990 at 100%
plus accrued dividends in every case;
provided, however, that except as provided in Section 6(b) below,
the Company may not redeem any of the 9 1/4% Preferred Stock
prior to December 1, 1986, as a part of, or in anticipation of, any
refunding operation involving the application, directly or
indirectly, of money borrowed by the Company having an interest
cost (calculated in accordance with generally accepted financial
practice), or through the issuance of Preferred Stock ranking
equally with or prior to the 9 1/4% Preferred Stock having a
dividend cost (calculated as aforesaid) of less than 9 1/4% per
annum. The 9 1/2% Preferred Stock shall bear dividends at the rate
of 9 1/2% per annum and shall be redeemable at the option of the
Company as follows:
At 109.5% if called on or prior to August 1, 1980;
at 109.0% if called on or prior to August 1, 1981;
at 108.5% if called on or prior to August 1, 1982;
at 108.0% if called on or prior to August 1, 1983;
at 107.5% if called on or prior to August 1, 1984;
at 107.0% if called on or prior to August 1, 1985;
at 106.5% if called on or prior to August 1, 1986;
at 106.0% if called on or prior to August 1, 1987;
at 105.5% if called on or prior to August 1, 1988;
at 105.0% if called on or prior to August 1, 1989;
at 104.5% if called on or prior to August 1, 1990;
at 104.0% if called on or prior to August 1, 1991;
at 103.5% if called on or prior to August 1, 1992;
at 103.0% if called on or prior to August 1, 1993;
at 102.5% if called on or prior to August 1, 1994;
at 102.0% if called on or prior to August 1, 1995;
at 101.5% if called on or prior to August 1, 1996;
at 101.0% if called on or prior to August 1, 1997;
at 100.5% if called on or prior to August 1, 1998;
and after August 1, 1998 at 100%
plus accrued dividends in every case;
provided, however, that, except as provided in Section 6(b) below,
the Company may not redeem any of the 9 1/2% Preferred Stock
prior to August 1, 1989, as a part of, or in anticipation of, any
refunding operation involving the application, directly or
indirectly, of money borrowed by the Company having an interest
cost (calculated in accordance with generally accepted financial
practice), or through the issuance of Preferred Stock having a
dividend cost (calculated as aforesaid) of less than 9 1/2% per
annum. Preferred Stock, which is the subject of redemption, may be
called in whole or in part upon any dividend date by appropriate
resolution adopted by the Board of Directors at any regular or
special meeting upon 60 days' notice to the owners thereof
redemption, postage prepaid, addressed to such owners at their
addresses as shown on the books of the Company. If less than all
of the outstanding shares of any class or series of Preferred Stock
shall be redeemed at any time, the stock to be so redeemed shall be
determined by lot, in such manner as the Board of Directors may
determine and prescribe, except that the shares of the 9 1/4%
Preferred Stock and the 9 1/2% Preferred Stock to be redeemed may
be determined by lot or pro rata or in such other manner as the
Board of Directors may determine and prescribe.
"(b) The 9 1/4% Preferred Stock and the 9 1/2% Preferred
Stock shall also be subject to redemption through the operation of
sinking funds (herein collectively called the Sinking Funds and
individually called the 9 1/4% Preferred Stock Sinking Fund or the
9 1/2% Preferred Stock Sinking Fund) at the redemption price (the
Sinking Fund Redemption Price) of $100 per share plus an amount
equal to the dividends accrued and unpaid thereon to the redemption
date, whether or not earned or declared. For the purposes of the
Sinking Funds, out of any net assets of the Company legally
available therefor remaining after full cumulative dividends upon
all Preferred Stock then outstanding to the end of the current
dividend period therefor shall have been paid or declared and set
apart for payment, the Company shall set aside in cash annually (1)
on December 1 in each year commencing with December 1, 1982, an
amount sufficient to redeem, at the Sinking Fund Redemption Price,
1000 shares of the 9 1/4% Preferred Stock, and (2) on August 1 in
each year commencing with August 1, 1985, an amount sufficient to
redeem, at the sinking Fund Redemption Price, 2000 shares of the 9
1/2% Preferred Stock. The Sinking Funds shall be cumulative so
that if on any such December 1 and/or August 1, the net assets of
the Company legally available therefor shall be insufficient to
permit any such amount to be set aside in full, or if for any other
reason such amount shall not have been set aside in full, the
amount of the deficiency shall be set aside, but without interest,
before any dividend shall be paid or declared, or any distribution
made, on any junior shares or any junior shares shall be purchased,
redeemed, or otherwise acquired by the Company, or any money shall
be paid to or set aside or made available for a sinking fund for
the purchase or redemption of any junior shares. Notwithstanding
the foregoing, the Company may at any time (1) pay dividends in
junior shares or (2) purchase, redeem or otherwise acquire junior
shares in exchange for, or out of the net cash proceeds from the
concurrent sale of, other junior shares. As used herein, the term
"junior shares" shall mean Common Stock or any other shares ranking
junior to the 9 1/4% Preferred Stock or the 9 1/2% Preferred Stock
either as to dividends or upon liquidation, dissolution or winding
up. Monies in the Sinking Funds shall be applied (and disbursed)
on such December 1 and August 1 to the redemption of shares of the
9 1/4% Preferred Stock and the 9 1/2% Preferred Stock,
respectively. The Company shall, prior to each such Sinking Fund
redemption, give notice of redemption of such number of shares of
the 9 1/4% Preferred Stock and the 9 1/2% Preferred Stock as may be
required to satisfy the Sinking Funds.
"(c) In addition, the Company shall have the right, at its
option, to redeem at the Sinking Fund Redemption Price (1) on
December 1, 1982 and on any December 1 thereafter an additional
number of shares of the 9 1/4% Preferred Stock up to but not
exceeding 1,000 shares, and (2) on August 1, 1985, and on any
August 1 thereafter an additional number of shares of the 9 1/2%
Preferred Stock up to but not exceeding 2,000 shares; provided,
however, that the aggregate number of shares of the 9 1/2%
Preferred Stock which may be redeemed pursuant to this Section
6(c)(2) may not exceed 9000 shares. This right shall not be
cumulative and shall be lost to the extent not exercised. Any
redemption of shares of the 9 1/4% Preferred Stock or the 9 1/2%
Preferred Stock pursuant to this Section 6(c) shall not operate to
reduce the number of shares which the Company is obligated to
redeem pursuant to this Section 6(b)."
and
FURTHER RESOLVED that any and all requirements of prior notice of
proposed amendments or alterations of the By-Laws, including the notice
requirements contained in Article XII, Section 2 of the By-Laws, are hereby
waived, and that the foregoing amendments to the By-Laws are adopted
effective as of the date hereof without further action of the Board of
Directors; and
FURTHER RESOLVED that the form of proposed agreement presented this date
to the Board for the sale of the 9 1/2% Preferred Stock to the purchaser
named therein is hereby approved; that the Chairman of the Board, the
President, or any Vice President of the Company or any of them be and each of
them is hereby authorized to execute the same in substantially the form
presented as aforesaid with such changes as the officer executing the same
may approve acting under the advice of counsel for this Company, and that the
execution and delivery of said agreement shall be conclusive evidence of such
approval.
A true copy.
Attest: \ss\ Robert S. Briggs, Clerk
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 ARTICLES OF AMENDMENT SECRETARY OF STATE
Fee Paid $20,625 & 10.00 FILED
C.B. 746 (Amendment by Shareholders April 29, 1980
Date: 4-29-80 Voting as Separate Class) Agent
OF
BANGOR HYDRO-ELECTRIC COMPANY
a Quasi-Public Corporation
Pursuant to 13-A MRSA 805 and 807, the undersigned corporation adopts these
Articles of Amendment.
FIRST: As set out in detail in "THIRD", one or more classes of shares
of the corporation were entitled to vote on the following amendments as a
separate class.
SECOND: The amendments to the Articles of Incorporation of the
corporation set out in Exhibit A attached hereto were adopted by the
shareholders thereof at a meeting legally called and held on April 22, 1980.
THIRD: On said date, the number of shares of each class outstanding and
entitled to vote on such amendments (whether or not entitled to vote as a
separate class), the manner in which each such class was entitled to vote
(whether or not as a separate class), and the number of shares voted for and
against such amendments, respectively, were as follows:
Designation of Manner No. of Shares
Each Class in which Outstanding
However Entitled Entitled And Entitled Voted Voted Proposal
To Vote To Vote To Vote For Against
- - -----------------------------------------------------------------
To increase Common stock as a class 1,816,933 997,599 65,482
Authorized $5 par value
Preferred
Stock
$100 par
value Preferred Stock as a class 97,340* 80,044 859
--------- --------- ------
TOTALS 1,914,273 1,085,643 66,341
========= ========= ======
To increase Common Stock as a class 1,816,933 1,000,607 60,147
Authorized $5 par value
Common Stock
$5 par Preferred Stock general 47,340 26,635 1,074
value $100 par value --------- --------- ------
TOTALS 1,864,273 1,027,242 61,221
========= ========= ======
To Authorize Common Stock general 1,816,933 1,023,208 48,866
Directors To $5 par value
Divide Unissued
Preferred Stk. Preferred Stk. as a class 97,340* 88,202 607
---------- --------- ------
TOTALS 1,914,273 1,111,410 49,473
========= ========== ======
*Includes 50,000 shares which do not have general voting powers.
FOURTH: If such amendments provide for exchange, reclassification or
cancellation of issued shares the manner in which the same shall be effected
is contained in Exhibit B attached hereto, if it is not set forth in the
amendment itself.
Not applicable.
FIFTH: If such amendments effect a change in the number or par values
of authorized shares, the number of shares which the corporation has
authority to issue after giving effect to such amendments is as follows:
Class Series Number of Shares Par Value
- - --------------- ------------ ---------------- ---------
Common Stock, N/A 5,000,000 $ 5
$5 par value
Preferred Stock, As determined by 250,000 $100
$100 par value Board of Directors
The aggregate par value of such shares (of all classes and series)
having par value is $50,000,000.
The total number of all such shares (of all classes and series) without
par value is -0- shares.
SIXTH: The address of the registered office of the corporation in the
State of Maine is 33 State Street, PO Box 932, Bangor, Maine 04401.
Dated: April 25, 1980
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Robert S. Briggs
signers Robert S. Briggs, Clerk
(type or print name & capacity)
I certify that I have custody of the minutes showing the above action by the
shareholders.
\ss\ Robert S. Briggs
Clerk
FORM NO. MBCA-9A
BANGOR HYDRO-ELECTRIC COMPANY
EXHIBIT A TO ARTICLES OF AMENDMENT DATED APRIL 25, 1980
RESOLVED that the Articles of Incorporation of the Company, as
amended to date, be further amended to increase the Company's
authorized capital stock by $27,500,000, such increase to be
represented by 150,000 shares of Preferred Stock of the par value
of $100 each and 2,500,000 shares of Common Stock of the par value
of $5 each, so that the total amount of authorized capital stock of
the Company will be $50,000,000 represented by 250,000 shares of
Preferred Stock of the par value of $100 each and 5,000,000 shares
of Common Stock of the par value of $5 each.
RESOLVED that the Articles of Incorporation of the Company, as
amended to date, be further amended by adding the following
provision:
The shares of any preferred or special class of the Company's
capital stock may be divided into and issued in series. The
Board of Directors of the Company shall have authority to
divide any or all of the shares of any preferred or special
class of the Company's capital stock into series and to fix
and determine the relative rights and preferences of the
shares of any series so established.
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 103-240 STATEMENT OF RESOLUTION SECRETARY OF STATE
Fee Paid $5.00 ESTABLISHING SERIES OF FILED
C.B. 520 SHARES OF BANGOR HYDRO- January 13, 1983
Date: 1-14-83 ELECTRIC COMPANY Agent
(13% Preferred Stock)
Pursuant to 13-A MRSA 503, the undersigned corporation submits the following
for the purpose of establishing and designating a series of shares and fixing
and determining the relative rights and preferences thereof:
FIRST: The attached resolution establishing and designating the series
and fixing and determining the relative rights and preferences thereof was
duly adopted by the Board of Directors on January 10, 1983.
SECOND: The Articles expressly grant to the Board of Directors the
authority to make such a resolution.
THIRD: The address of the registered office of the corporation is: 33
State Street, PO Box 932, Bangor, Maine 04401.
Dated: January 12, 1983
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Robert S. Briggs
signers Robert S. Briggs, Clerk
(type or print name & capacity)
- - ---------------------------------
* The name of the corporation should be typed, and the document must be
signed by (1) the Clerk or (2) by the President or a vice-president and
by the Secretary or an assistant secretary or such other officer as the
bylaws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of the Directors or by such
Directors as may be designated by a majority of Directors then in office
or (4) if there are no such Directors, then by the holders, or such of
them as may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
the outstanding shares of the corporation.
FORM NO. MBCA-7
BANGOR HYDRO-ELECTRIC COMPANY
RESOLUTIONS ADOPTED BY THE BOARD OF
DIRECTORS BY UNANIMOUS CONSENT WITHOUT
A MEETING AS OF JANUARY 10, 1983
WHEREAS the Company desires to secure additional funds for its general
corporate purposes, including, among other things, capital expenditures; and
WHEREAS 153,660 of the 250,000 shares of the Company's authorized
Preferred Stock, $100 par value, are presently unissued, and may be issued in
one or more classes or series with such dividends, designations, terms,
conditions, and restrictions as may be determined in their discretion by this
Board of Directors; and
WHEREAS in the judgment of this Board of Directors it is advisable to
secure a portion of such additional funds by authorizing the issue of 50,000
shares of the Company's authorized but unissued shares of Preferred Stock,
$100 par value; and
WHEREAS the officers of the Company have consulted with Smith Barney,
Harris Upham & Co., Incorporated of New York concerning the most desirable
method of offering such additional Preferred Stock, and have determined that
it should be sold at private sale to a limited number of institutional
investors;
NOW THEREFORE BE IT RESOLVED that the Company hereby establishes a new
series of Preferred Stock to be designated as the 13% Preferred Stock,
consisting of 50,000 shares of the authorized but unissued Preferred Stock,
$100 par value of the Company; and
FURTHER RESOLVED that the 13% Preferred Stock be sold at not less than
the par value at a private sale to a limited number of institutional
investors; and
FURTHER RESOLVED that none of the holders of any of the classes or
series of the Preferred Stock, and none of the holders of the Common Stock,
of the Company shall have the preemptive right to subscribe for and take
shares of the 13% Preferred Stock; and
FURTHER RESOLVED that the Company does hereby appoint and designate
Smith Barney, Harris Upham & Co. Incorporated of New York as its
representative in this sale of the 13% Preferred Stock, and does hereby
authorize said Smith Barney, Harris Upham & Co. Incorporated to dispose of
said 13% Preferred Stock at private sale at par value plus accrued dividends,
if any; and
FURTHER RESOLVED that the appropriate officers of the Company be and
they hereby are authorized and directed to file with the Maine Public
Utilities Commission an application for approval of the issuance of the 13%
Preferred Stock, including any and all amendments thereto, and to do all
other acts necessary or desirable in order to secure the approval of said
Maine Public Utilities Commission; and
FURTHER RESOLVED that upon receipt of the Order of said Maine Public
Utilities Commission relative to the issuance and sale of the 13% Preferred
Stock, said Order is to be recorded upon the books of the Company by its
Clerk or Assistant Clerk; and
FURTHER RESOLVED that pursuant to Article XI of the By-Laws of the
Company, said By-Laws be amended in order to set forth the dividend,
designation, terms, conditions and restrictions relative to the 13% Preferred
Stock, as follows:
(a) The first paragraph of Article XI, Section 2 is hereby amended to
read as follows:
"Section 2. The 250,000 shares of Preferred Stock shall be available
for classification and reclassification in different classes or series
from time to time. Subject to reclassification upon retirement by
redemption or otherwise, 25,000 shares shall be 7% Preferred Stock,
17,500 shares shall be 4% Preferred Stock, Series A, 4,840 shares shall
be 4 1/4% Preferred Stock, 20,000 shares shall be 9 1/4% Preferred
Stock, 30,000 shares shall be 9 1/2% Preferred Stock, and 50,000 shares
shall be 13% Preferred Stock."
(b) The first line of the second paragraph of Article XI, Section 2, is
hereby amended to read as follows:
"The remaining shares, 102,660 in number, plus additional shares...."
(c) the third sentence of the first paragraph of Article XI, Section 3
is hereby amended to read as follows:
"Except as provided in paragraph (b) of Section 6 and paragraph (e) of
Section 7,..."
(d) Article XI, Section 4, subparagraph (c) is hereby amended by
deleting the same and substituting therefor the following:
"(c) Notwithstanding the provisions of Section 5 of Article III of these
By-Laws, except as provided in paragraph (b) of this Section 4, the
holders of the 9 1/4% Preferred Stock, the 9 1/2% Preferred Stock, and
the 13% Preferred Stock shall not be entitled to vote at any meeting of
stockholders."
(e) Article XI, Section 5 is hereby amended by deleting the same and
substituting therefor the following:
"Section 5. In case of liquidation or dissolution of the Company, the
assets, irrespective of whether they shall consist of capital assets or
accumulated earnings, shall be distributed as follows: All holders of
Preferred Stock shall be entitled to be paid in full both the par amount
of their shares and an amount equal to the unpaid dividends accumulated
and accrued thereon and, in the case of the 9 1/4% Preferred
Stock, the 9 1/2% Preferred Stock and the 13% Preferred Stock, if such
liquidation or dissolution is voluntary, an amount equal to the premium
specified in Section 6(a) below, before any amount shall be paid to the
holders of the Common Stock, and in case the assets shall not be
sufficient to pay in full all of the Preferred Stock and dividends
accumulated and accrued thereon, and applicable premium, then the
principal thereof shall first be paid pro rata, thereafter a pro rata
distribution of any excess shall be made on account of the accumulated
dividends, based on the total amount of unpaid dividends accumulated
and accrued thereon, and thereafter a pro rata distribution of any
excess shall be made on account of applicable premium, based on the
total amount of applicable premium, but after such payment to the
holders of the Preferred Stock, the remaining assets and funds shall be
paid to the holders of the Common Stock, according to their respective
shares."
(f) Article XI, Section 6 is hereby amended by deleting the same and
substituting therefor the following:
"Section 6. (a) The 7% Preferred Stock shall bear dividends at the rate
of 7% per annum and shall not be redeemable. The 4% Preferred Stock,
Series A, shall bear dividends at the rate of 4% per annum and shall be
redeemable at 112% if called on or prior to October 1, 1950; at 111%
thereafter through October 1, 1951; and after October 1, 1951 at 110%,
plus accrued dividends in every case. The 4 1/4% Preferred Stock shall
bear dividends at the rate of 4 1/4% per annum and shall be redeemable
at 102% if called on or prior to April 1, 1954; at 101% thereafter
through April 1, 1959; and after April 1, 1959 at 100%, plus accrued
dividends in every case. The 9 1/4% Preferred Stock shall bear
dividends at the rate of 9 1/4% per annum and shall be redeemable at the
option of the Company as follows:
At 109.25% if called on or prior to December 1, 1976;
at 108.63% thereafter through December 1, 1977;
at 108.01% thereafter through December 1, 1978;
at 107.39% thereafter through December 1, 1979;
at 106.77% thereafter through December 1, 1980;
at 106.15% thereafter through December 1, 1981;
at 105.53% thereafter through December 1, 1982;
at 104.91% thereafter through December 1, 1983;
at 104.29% thereafter through December 1, 1984;
at 103.67% thereafter through December 1, 1985;
at 103.05% thereafter through December 1, 1986;
at 102.43% thereafter through December 1, 1987;
at 101.81% thereafter through December 1, 1988;
at 101.19% thereafter through December 1, 1989;
at 100.57% thereafter through December 1, 1990;
and after December 1, 1990 at 100% plus
accrued dividends in every case;
provided however, that except as provided in Section 6(b) below, the
Company may not redeem any of the 9 1/4% Preferred Stock prior to
December 1, 1986, as a part of, or in anticipation of, any refunding
operation involving the application, directly or indirectly, of money
borrowed by the Company having an interest cost (calculated in
accordance with generally accepted financial practice), or through the
issuance of Preferred Stock ranking equally with or prior to the 9 1/4%
Preferred Stock having a dividend cost (calculated as aforesaid) of less
than 9 1/4% per annum. The 9 1/2% Preferred Stock shall bear dividends
at the rate of 9 1/2% per annum and shall be redeemable at the option of
the Company as follows:
At 109.5% if called on or prior to August 1, 1980;
at 109.0% if called on or prior to August 1, 1981;
at 108.5% if called on or prior to August 1, 1982;
at 108.0% if called on or prior to August 1, 1983;
at 107.5% if called on or prior to August 1, 1984;
at 107.0% if called on or prior to August 1, 1985;
at 106.5% if called on or prior to August 1, 1986;
at 106.0% if called on or prior to August 1, 1987;
at 105.5% if called on or prior to August 1, 1888;
at 105.0% if called on or prior to August 1, 1989;
at 104.5% if called on or prior to August 1, 1990;
at 104.0% if called on or prior to August 1, 1991;
at 103.5% if called on or prior to August 1, 1992;
at 103.0% if called on or prior to August 1, 1993;
at 102.5% if called on or prior to August 1, 1994;
at 102.0% if called on or prior to August 1, 1995;
at 101.5% if called on or prior to August 1, 1996;
at 101.0% if called on or prior to August 1, 1997;
at 100.5% if called on or prior to August 1, 1998;
and after August 1, 1988 at 100%, plus accrued
dividends in every case;
provided, however, that except as provided in Section 6(b) below, the
Company may not redeem any of the 9 1/2% Preferred Stock prior to August
1, 1989; as a part of, or in anticipation of, any refunding operation
involving the application, directly or indirectly, of money borrowed by
the Company having an interest cost (calculated in accordance with
generally accepted financial practice), or through the issuance of
Preferred Stock having a dividend cost (calculated as aforesaid) of less
than 9 1/2% per annum. The 13% Preferred Stock shall bear dividends at
the rate of 13% per annum and shall be redeemable at the option of the
Company as follows:
At 113.00% if called on or prior to January 31, 1984;
at 112.46% if called on or prior to January 31, 1985;
at 111.92% if called on or prior to January 31, 1986;
at 111.38% if called on or prior to January 31, 1987;
at 110.83% if called on or prior to January 31, 1988;
at 110.29% if called on or prior to January 31, 1989;
at 109.75% if called on or prior to January 31, 1990;
at 109.21% if called on or prior to January 31, 1991;
at 108.67% if called on or prior to January 31, 1992;
at 108.13% if called on or prior to January 31, 1993;
at 107.58% if called on or prior to January 31, 1994;
at 107.04% if called on or prior to January 31, 1995;
at 106.50% if called on or prior to January 31, 1996;
at 105.96% if called on or prior to January 31, 1997;
at 105.42% if called on or prior to January 31, 1998;
at 104.88% if called on or prior to January 31, 1999;
at 104.33% if called on or prior to January 31, 2000;
at 103.79% if called on or prior to January 31, 2001;
at 103.25% if called on or prior to January 31, 2002;
at 102.71% if called on or prior to January 31, 2003;
at 102.17% if called on or prior to January 31, 2004;
at 101.63% if called on or prior to January 31, 2005;
at 101.08% if called on or prior to January 31, 2006;
at 100.54% if called on or prior to January 31, 2007;
and after January 31, 2007 at 100%, plus accrued
dividends in every case;
provided, however, that except as provided in Section 6(b) below, the
Company may not redeem any of the 13% Preferred Stock prior to January
31, 1993, as a part of, or in anticipation of, any refunding operation
involving the application, directly or indirectly, of money borrowed by
the Company having an interest cost (calculated in accordance with
generally accepted financial practice), or through the issuance of
Preferred Stock having a dividend cost (calculated as aforesaid) of less
than 13% per annum. Preferred Stock, which is the subject of
redemption, may be called in whole or in part upon any dividend date by
appropriate resolution adopted by the Board of Directors at any regular
or special meeting upon 60 days' notice to owners thereof of record to
be given by mailing copies of the notice of redemption, postage prepaid,
addressed to such owners at their addresses as shown on the books of the
Company. If less than all of the outstanding shares of any class or
series of Preferred Stock shall be redeemed at any time, the stock to be
so redeemed shall be determined by lot, in such manner as the Board of
Directors may determine and prescribe, except that the shares of the 9
1/4% Preferred Stock, the 9 1/2% Preferred Stock and the 13% Preferred
Stock to be redeemed may be determined by lot or pro rata or in such
other manner as the Board of Directors may determine and prescribe.
"(b) The 9 1/4% Preferred Stock, the 9 1/2% Preferred Stock and the 13%
Preferred Stock shall also be subject to redemption through the
operation of sinking funds (herein collectively called the Sinking Funds
and individually called the 9 1/4% Preferred Stock Sinking Fund, the 9
1/2% Preferred Stock Sinking Fund or the 13% Preferred Stock Sinking
Fund) at the redemption price (the Sinking Fund Redemption Price) of
$100 per share plus an amount equal to the dividends accrued and unpaid
thereon to the redemption date, whether or not earned or declared. For
the purposes of the Sinking Funds, out of any net assets of the Company
legally available therefor remaining after full cumulative dividends
upon all Preferred Stock then outstanding to the end of the current
dividend period therefor shall have been paid or declared and set apart
for payment, the Company shall set aside in cash annually (1) on
December 1 in each year commending with December 1, 1982, an amount
sufficient to redeem, at the Sinking Fund Redemption Price, 1000 shares
of the 9 1/4% Preferred Stock, (2) on August 1 in each year commencing
with August 1, 1985, an amount sufficient to redeem, at the Sinking Fund
Redemption Price, 2000 shares of the 9 1/2% Preferred Stock, and (3) on
January 31 in each year commencing with January 31, 1989, an amount
sufficient to redeem, at the Sinking Fund Redemption Price, 2500 shares
of the 13% Preferred Stock. The Sinking Funds shall be cumulative so
that if on any such December 1, August 1 or January 31, as the case may
be, the net assets of the Company legally available therefor shall be
insufficient to permit any such amount to be set aside in full, or if
for any other reason such amount shall not have been set aside in full,
the amount of the deficiency shall be set aside, but without interest,
before any dividend shall be paid or declared, or any distribution made,
on any junior shares or any junior shares shall be purchased, redeemed,
or otherwise acquired by the Company, or any monies shall be paid to or
set aside or made available for a sinking fund for the purchase or
redemption of any junior shares. Notwithstanding the foregoing, except
as provided in paragraph (c) of Section 7, the Company may at any time
(1) pay dividends in junior shares or (2) purchase, redeem or otherwise
acquire junior shares in exchange for, or out of the net cash proceeds
from the concurrent sale of, other junior shares. As used herein the
term "junior shares" shall mean Common Stock or any other shares ranking
junior to the 9 1/4% Preferred Stock, the 9 1/2% Preferred Stock or the
13% Preferred Stock, as the case may be, either as to dividends or upon
liquidation, dissolution or winding up. Monies in the Sinking Funds
shall be applied (and disbursed) on such December 1, August 1 and
January 31, to the redemption of shares of the 9 1/4% Preferred Stock,
the 9 1/2% Preferred Stock and the 13% Preferred Stock,
respectively. The Company shall, prior to each such Sinking Fund
redemption, give notice of redemption of such number of shares of the 9
1/4% Preferred Stock, the 9 1/2% Preferred Stock and the 13% Preferred
Stock as may be required to satisfy the Sinking Funds.
"(c) In addition, the Company shall have the right, at its option, to
redeem at the Sinking Fund Redemption Price (1) on December 1, 1982 and
on any December 1 thereafter an additional number of shares of the 9
1/4% Preferred Stock up to but not exceeding 1000 shares, and (2) on
August 1, 1985, and on any August 1 thereafter an additional number of
shares of the 9 1/2% Preferred Stock up to but not exceeding 2000
shares, provided, however, that the aggregate number of shares of the 9
1/2% Preferred Stock which may be redeemed pursuant to this Section
6(c)(2) may not exceed 9000 shares. These rights shall not be
cumulative and shall be lost to the extent not exercised. Any
redemption of shares of the 9 1/4% Preferred Stock or the 9 1/2%
Preferred Stock pursuant to this Section 6(c) shall not operate to
reduce the number of shares which the Company is obligated to redeem
pursuant to Section 6(b).
"(d) Furthermore (1) the Company shall have the right, at its option,
to redeem at the Sinking Fund Redemption Price on January 31, 1989, and
on each January 31 thereafter, an additional number of shares of the 13%
Preferred Stock up to but not exceeding 2500 shares, such right to be
non-cumulative so that if in any year such right is not exercised, it
shall be forfeited, and (2) the purchasers of the 13% Preferred Stock
named in the Purchase Agreement dated as of January 20, 1983 between the
Company and such purchasers shall have the right, at their option, to
cause the Company to redeem at the Sinking Fund Redemption Price on
January 31, 1989 and on any January 31 thereafter an additional number
of shares of the 13% Preferred Stock up to but not exceeding 2500
shares, in aggregate amount from all such purchasers, per year, such
right to be non-cumulative so that if in any year such right is not
exercised, it shall be forfeited. Requests for redemption pursuant to
this Section 6(d)(2) shall be filed with the Company no later than 15
days prior to the applicable redemption date. In the event such
requests aggregate more than 2500 shares, the Company shall allocate the
amount so those requesting such redemption shall agree. Any redemption
of shares of the 13% Preferred Stock pursuant to this Section 6(d) shall
not operate to reduce the number of shares which the Company is
obligated to redeem pursuant to Section 6(b)."
(g) Sections 7, 8, 9, 10 and 11 of Article XI are hereby renumbered
Sections 8, 9, 10, 11 and 12, and a new Section 7 is hereby adopted as
follows:
"Section 7. Notwithstanding any provision to the contrary herein, so
long as there remain outstanding any shares of the 13% Preferred Stock,
the following provisions shall apply:
(a) Without the prior written consent of the holders of a majority
of the shares of the 13% Preferred Stock ("Consent"), the Board of
Directors will not authorize and the Company will not issue any
shares of preferred stock (either of the same class or series or of
a different class or series) with preferences or rights superior or
prior to the 13% Preferred Stock in the payment of dividends, the
distribution of assets in liquidation, or the application of funds
available for mandatory sinking fund payments.
(b) Without Consent, the Company shall not, at any time at which
it is delinquent (1) in the full payment of dividends due and
payable on the 13% Preferred Stock, (2) in the payment in full of
any sinking fund installment with respect to the 13% Preferred
Stock, or (3) in the making of any mandatory redemption or
repurchase of the 13% Preferred Stock, issue any shares of
Preferred Stock of the Company.
(c) Without Consent, the Company shall not declare or pay a
dividend on or voluntarily redeem or repurchase shares of Common
Stock of the Company or any class or series of capital stock of the
Company that is junior to the 13% Preferred Stock, either as to
dividends or upon liquidation, dissolution or winding up, unless
and until the Company has (1) paid in full the dividends accrued on
and sinking fund payments with respect to the 13% Preferred Stock,
and (2) made all redemptions which it is required to have made
through the applicable dates.
(d) The Company shall not voluntarily redeem, including a
voluntary redemption of shares under the provisions of Section 6(c)
hereto, or repurchase any shares of outstanding preferred stock of
the Company, unless and until the Company has paid in full the
dividends accrued and sinking fund payments due with respect to the
13% Preferred Stock.
(e) The Board of Directors may declare dividends upon the Common
Stock only if the dividends upon the 13% Preferred Stock, with all
accumulations, shall have been paid in full."
FURTHER RESOLVED that any and all requirements of prior notice of
proposed amendments or alterations of the By-Laws, including the notice
requirements contained in Article XII, Section 2 of the By-Laws, are hereby
waived, and that the foregoing amendments to the By-Laws are adopted
effective as of the date hereof without further action of the Board of
Directors; and
FURTHER RESOLVED that the appropriate officers of the Company and each
of them be and they hereby are authorized and directed to prepare, execute
and file with the Secretary of State of the State of Maine, a Statement of
Resolution Establishing Series of Shares in accordance with 13-A M.R.S.A. 503
incorporating the relative rights and preferences of the 13% Preferred Stock
set forth in Article XI if the By-Laws of the Company as hereinbefore amended
and including such other information as may be required by applicable law,
rule or regulation; and
FURTHER RESOLVED that the form of proposed agreement (draft of January
5, 1983) presented to the Board of Directors for the sale of the 13%
Preferred Stock to the purchasers named therein is hereby approved; that the
Chairman of the Board, the President, or any Vice President of the Company or
any of them be and each of them is hereby authorized to execute the same in
substantially the form presented as aforesaid with such changes as the
officer executing the same may approve acting under the advice of counsel for
the Company, and that the execution and delivery of said agreement shall be
conclusive evidence of such approval; and
FURTHER RESOLVED that all the powers and duties of Northeast Bank &
Trust Co., as Transfer Agent for the shares of Preferred Stock of the Company
(the "Transfer Agent"), and all the powers and duties of The Merrill Trust
Company, as Registrar of the shares of Preferred Stock of the Company, (the
"Registrar"), are hereby extended upon the same terms and conditions to cover
the transfer and registration, respectively, of the 13% Preferred Stock; and
that the proper officers of the Company be, and each of them hereby is,
authorized and directed to give the Transfer Agent and Registrar, as the case
may be, such instructions as may be appropriate to effect the issuance and
sale of the 13% Preferred Stock; and
FURTHER RESOLVED that the Chairman of the Board, the President or any
Vice President of the Company or any of them be and each of them hereby is
authorized in the name of and on behalf of the Company to pay to the Transfer
Agent and Registrar all proper fees and charges arising out of or in
connection with the performance by the same of their respective duties in
connection with the Shares, and to pay any and all expenses and fees arising
in connection with the issuance and sale of the 13% Preferred Stock; and
FURTHER RESOLVED that the appropriate officers of the Company and each
of them be and they hereby are authorized and directed to make, sign,
execute, verify, acknowledge and deliver, or cause to be made, signed,
execute, verified, acknowledged and delivered, any and all of such orders,
certificates, directions, requests and other appropriate instruments and to
do all such acts and things as may be reasonably required from time to time
hereafter to give effect to the foregoing votes, or any of them, or to
otherwise effect the issuance and sale of the 13% Preferred Stock.
A true copy.
Attest: \ss\ Robert S. Briggs
STATE OF MAINE
File No. 240001D ARTICLES OF AMENDMENT MAINE
Fee Paid $9,375. & $10 (Amendment by Shareholders SECRETARY
C.B. 929 Voting as Separate Class OF STATE
Date: 5-2-83 of FILED
Bangor Hydro-Electric Company May 2, 1983
a Quasi-Public Corporation Agent
Pursuant to 13-A MRSA 805 and 807, the undersigned corporation adopts these
Articles of Amendment.
FIRST: As set out in detail in "THIRD", one or more classes of shares of
the corporation were entitled to vote on the following amendment as a
separate class.
SECOND: The amendment to the Articles of Incorporation of the corporation
set out in Exhibit A attached hereto was adopted by the shareholders thereof
at a meeting legally called and held on April 26, 1983.
THIRD: On said date, the number of shares of each class outstanding and
entitled to vote on such amendment (whether or not entitled to vote as a
separate class), the manner in which each such class was entitled to vote
(whether or not as a separate class) and the number of shares voted for and
against said amendment, respectively, were as follows:
Designation of Manner No. of Shares
Each Class in Which Outstanding
However Entitled Entitled and Entitled Voted Voted
to Vote to Vote to Vote For Against
- - ---------------------------------------------------------------
Common Stock as a separate 3,441,101 2,028,290 98,603
$5 par value class
Preferred Stock general 47,340 26,749 1,038
--------- --------- ------
Totals of all Classes 3,488,441 2,055,039 99,641
========= ========= ======
FOURTH: If such amendment provides for exchange, reclassification or
cancellation of issued shares the manner in which the same shall be effected
is contained in Exhibit B attached hereto, if it is not set forth in the
amendment itself.
*FIFTH: If such amendment effects a change in the number or par values of
authorized shares the number of shares which the corporation has authority to
issue after giving effect to such amendment, is as follows:
Series Number Par Value
Class (If Any) of Shares (if any)
- - ---------------------------------------------------------------
Common Stock N/A 7,500,000 $5
Preferred Stock As determined by 250,000 $100
$00 par value Board of Directors
The aggregate par value of all such shares (of all classes and series )
having par value is $62,500,000.
The total number of all such shares (of all classes and series) without par
value is -0- shares.
SIXTH: The address of the registered office of the corporation in the State
of Maine is 33 State Street, PO Box 932, Bangor, Maine 04401.
Dated: April 29, 1983
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Robert S. Briggs
signers Robert S. Briggs, Clerk
I certify that I have custody of the minutes showing the above action by the
shareholders.
\ss\ Robert S. Briggs
Robert S. Briggs, Clerk
EXHIBIT A.
RESOLVED that the Articles of Incorporation of the Company, as amended to
date, be further amended to increase the Company's authorized capital stock
by $12,500,000, such increase to be represented by 2,500,000 shares of Common
Stock of the par value of $5 each, so that the total amount of authorized
capital stock of the Company will be $62,500,000 represented by 250,000
shares of Preferred Stock of the par value of $100 each and 7,500,000 shares
of Common Stock of the par value of $5 each.
NOTE: Shares may be entitled to vote as a separate class for any of the
reasons stated in 806, or if so provided in the Articles. For vote necessary
for adoption, see 805.
- - ------------------------------------
* To be completed only if Exhibit A or B do not give this
required information.
** The name of the corporation should be typed, and the
document must be signed by (1) Clerk or (2) by the
President of a vice-president and by the Secretary or an
assistant secretary or such other officer as the bylaws may
designate as a second certifying officer or (3) if there
are no such officers, then by a majority of the Directors
or by such Directors as may be designated by majority of
directors then in office or (4) if there are not such
Directors, then by the holders, or such of them as may be
designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the
holders of all of the outstanding shares of the
corporation.
FORM NO. MBCA-9A
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 240001D CHANGE OF CLERK of SECRETARY OF STATE
Fee Paid $5.00 REGISTERED OFFICE or BOTH FILED
C.B. --- OF July 19, 1985
Date: 8-6-85 BANGOR HYDRO-ELECTRIC COMPANY Agent
Pursuant to 13-A MRSA 304, the undersigned corporation advises you of the
following change(s):
FIRST: The name and registered office of the Clerk appearing on the
record in Secretary of State's office: Robert S. Briggs, Esq., 33 State
Street, PO Box 932, Bangor, Maine 04401.
SECOND: The name and registered office of its successor (new Clerk)*
are Frederick S. Samp, Esq., 33 State Street, PO Box 932, Bangor, Maine
04401.
THIRD: Upon a change in Clerk this must be completed:
(X) Such change was authorized by the Board of Directors and the
power to make such change is not reserved to the shareholders
by the articles or the bylaws.
( ) Such change was authorized by the shareholders.
Dated: July 17, 1985
Legibly print or Bangor Hydro-Electric Company
type name and
capacity of all By \ss\ Frederick S. Samp
signers Frederick S. Samp, Clerk
13-A MRSA 104
- - ---------------------------------
* The Clerk of a domestic corporation must be a person resident in Maine.
** The name of the corporation should be typed, and the document must be
signed by (1) the Clerk or (2) by the President of a vice-president and
by the Secretary or an assistant secretary or such other officer as the
by-laws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of Directors then in office or (4)
if there are no such Directors, then by the holders, or such of them as
may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
of the outstanding shares of the corporation.
FORM NO. MBCA-7 - Rev. 77
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 240001D ARTICLES OF AMENDMENT SECRETARY OF STATE
Fee Paid $10.00 (Amendment by Share- FILED
C.B. ----- holders Voting as May 23, 1986
Date: 6-6-86 One Class) Agent
OF BANGOR HYDRO-
ELECTRIC COMPANY
a Quasi-Public Corporation
which is engaged in selling of Electricity
Pursuant to 13-A MRSA 805 and 807, the undersigned corporation adopts these
Articles of Amendment.
FIRST: All outstanding shares of the corporation were entitled to vote
on the following amendment as one class.
SECOND: The amendment to the Articles of Incorporation of the
corporation set out in Exhibit A attached hereto was adopted by the
shareholders thereof at a meeting legally called and held on May 21, 1986.
THIRD: On said date, the number of shares outstanding and entitled to
vote on such amendment, and the number of shares voted for and against said
amendment, respectively, were as follows:
Number of Shares Outstanding Voted Voted
and Entitled to Vote For Against
- - ---------------------------- ------------- ---------
Common Stock 4,450,684 2,711,364 849,024
$5 par value
Preferred Stock 47,340 35,635 553
---------- ----------- ---------
Totals 4,498,024 2,746,999 839,577
========== ========== =========
FOURTH: If such amendment provides for exchange, reclassification or
cancellation of issued shares, the manner in which the same shall be effected
is contained in Exhibit B attached hereto, if it is not set forth in the
amendment itself.
*FIFTH: If such amendment effects a change in the number or par values
of authorized shares the number of shares which the corporation has authority
to issue after giving effect to such amendment is as follows:
Series Number Par Value
Class (If any) of Shares (If any)
- - ----- -------- --------- ---------
N/A
The aggregate par value of all such shares (of all classes and series)
having par value is N/A.
The total number of all such shares (of all classes and series) without
par value is N/A shares.
SIXTH: The address of the registered office of the corporation in the
State of Maine is 33 State Street, PO Box 932, Bangor, Maine 04401.
Dated: May 22, 1986
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Frederick S. Samp
signers Frederick S. Samp, Clerk
13-A MRSA 104.
I certify that I have custody of the minutes showing the above action by the
shareholders.
\ss\ Frederick S. Samp
Frederick S. Samp, Clerk
NOTE: This form should not be used if any class of shares entitled to vote
as a separate class for any of the reasons set out in 806, or because the
articles so provide. For vote necessary for adoption see 805.
- - ------------------------------------
* To be completed only if Exhibit A or B do not give this required
information.
** The name of the corporation should be typed, and the document must be
signed by (1) Clerk or (2) by the President of a vice-president and by
the Secretary or an assistant secretary or such other officer as the
bylaws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of the Directors or by such
Directors as may be designated by majority of Directors then in office
or (4) if there are not such Directors, then by the holders, or such of
them as may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
of the outstanding shares of the corporation.
FORM NO. MBCA-9A
EXHIBIT A
BANGOR HYDRO-ELECTRIC COMPANY
AMENDMENTS TO ARTICLES OF INCORPORATION
ADOPTED AT THE ANNUAL MEETING OF STOCKHOLDERS
ON MAY 21, 1986
ARTICLE I.
BOARD OF DIRECTORS
A. The business and affairs of the Company shall be managed by a Board
of Directors consisting of not less than nine nor more than fifteen persons.
The exact number of Directors within the limitations specified in the
preceding sentence shall be fixed from time to time by the Board of Directors
pursuant to a resolution adopted by a majority of the Continuing Directors
(hereinafter defined). Until otherwise fixed by the Board of Directors
pursuant to the preceding sentence, the number of Directors shall be nine.
The Directors need not be elected by ballot unless required by the By-Laws of
the Company.
The Board of Directors shall be divided into three classes as nearly
equal in number as may be. The initial term of office of each Director in
the first class shall expire at the annual meeting of shareholders in 1987;
the initial term of office of each Director in the second class shall expire
at the annual meeting of shareholders in 1988; and the initial term of office
of each Director in the third class shall expire at the annual meeting of
shareholders in 1989. At each annual election commencing at the annual
meeting of shareholders in 1987, the successors to the class of Directors
whose term expires at that time shall be elected to hold office for a term of
three years to succeed those whose term expires, so that the term of one
class of Directors shall expire each year. Each Director shall hold office
for the term for which he is elected or appointed and until his successor
shall be elected and qualified or until his death, or until he shall resign
or be removed.
In the event of any increase or decrease in the authorized number of
Directors, (i) each Director then serving as such shall nevertheless continue
as a director of the class of which he is a member until the expiration of
his current term, or his earlier resignation, removal from office or death,
and (ii) the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of Directors so as to maintain such classes as nearly equal in
number as may be.
B. Newly created directorships resulting from any increase in the
authorized number of Directors or any vacancies on the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the Continuing
Directors then in office, or a sole remaining Director, although less than a
quorum, and Directors so chosen shall hold office for a term expiring at the
annual meeting of shareholders at which the term of the class to which they
have been elected expires. If one or more Directors shall resign from the
Board effective as of a future date, such vacancy or vacancies shall be
filled pursuant to the provisions hereof, and such new directorship(s) shall
become effective when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as herein provided
in the filling of other vacancies.
C. Any Director or the entire Board of Directors may be removed;
however, unless such removal is for cause and is approved as set forth in
this Section, the affirmative vote of not less than 80% of the voting power
of the shares entitled to vote thereon shall be required to effect such
removal. Except as may otherwise be provided by law, cause for removal shall
be construed to exist only if:
1. the Director whose removal is proposed has been convicted, or
where a Director was granted immunity to testify where another has been
convicted, of a felony by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal;
2. such Director has been grossly negligent in the performance of
his duties to the Company; or
3. such Director has been adjudicated by a court of competent
jurisdiction to be mentally incompetent, which mental incompetency
directly affects his ability as a Director of the Company, and such
adjudication is no longer subject to direct appeal.
Removal for cause, as cause is defined above, must be approved by at
least a two-thirds vote of the voting power of the shares of the Company then
entitled to be voted at an election for that Director, and the action for
removal must be brought within three months of such conviction or
adjudication.
Notwithstanding the foregoing, and except as otherwise provided by law,
in the event that Preferred Stock of the Company is issued and holders of any
one or more series of such Preferred Stock are entitled, voting separately as
a class, to elect one or more Directors of the Company to serve for such
terms as set forth in the Articles of Incorporation, the provisions of this
Section shall also apply, in respect to the removal of the Director or
Directors so elected, to the vote of the holders of the outstanding shares of
that class and not to the vote of the outstanding shares as a whole.
D. Notwithstanding the foregoing, and except as otherwise provided by
law, in the event that the holders (the "Preferred Stock Class") of one or
more series of the Preferred Stock of the Company shall be entitled to elect
one or more Directors of the Company ("Preferred Stock Directors") to serve
for such terms as set forth in the Articles of Incorporation, the manner of
election of the Board of Directors shall be unaffected, except to the extent
herein provided. For each Preferred Stock Director which shall be elected
the Board of Directors shall select from its members one Director (a
"Displaced Director") who shall, for so long as the Preferred Stock Director
shall remain a Preferred Stock Director, be deemed to have temporarily
vacated his or her office as a Director of the Company. The Continuing
Directors, by majority vote, shall designate the member or members who shall
be Displaced Directors. Such Displaced Directors shall be designated
initially from those Directors who are not Continuing Directors, and
subsequently, if there shall not have been a sufficient number of Directors
who are not Continuing Directors, the balance of the Displaced Directors
shall be selected from those Directors who are Continuing Directors.
ARTICLE II
MERGERS AND CERTAIN OTHER BUSINESS COMBINATIONS.
A. Unless the Business Combination (as hereinafter defined) shall have
been approved by a majority vote of the Continuing Directors (as hereinafter
defined) (whether such approval is made prior to or subsequent to the
acquisition of beneficial ownership of the Voting Stock that caused the
Related Person (as hereinafter defined) to become a Related Person, then, in
addition to any affirmative vote required by law or the Articles of
Incorporation or the By-Laws of the Company, a Business Combination shall
require the affirmative vote of not less than eighty percent (80%) of the
votes entitled to be cast by the holders of all of the then outstanding
shares of Voting Stock (as hereinafter defined), voting together as a single
class. Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage or separate class vote
may be specified, by law or in any agreement with any national securities
exchange or otherwise.
B. In addition to the voting requirements set forth in Section A of
this Article II, unless the Business Combination shall have been approved by
a majority of the Continuing Directors, a Business Combination shall require
that all of the following conditions be met with respect to every class or
series of outstanding Capital Stock (as hereinafter defined), whether or not
the Related Person has previously acquired beneficial ownership of any shares
of a particular class or series of Capital Stock:
1. The aggregate amount of cash and the Fair Market Value (as
hereinafter defined), as of the date of the consummation of the Business
Combination, of consideration other than cash to be received per share by the
holders of Common Stock in such Business Combination shall be at least equal
to the highest amount determined under clauses (a), (b), (c) and (d) below:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Related Person for any share of Common Stock in
connection with the acquisition by the Related Person of beneficial
ownership of any of its holdings of Common Stock, as adjusted for any
subsequent stock split, stock dividend, subdivision or reclassification
with respect to Common Stock;
(b) the Fair Market Value per share of Common Stock on the date of
the first public announcement of the proposed Business Combination (the
"Announcement Date") or on the date on which the Related Person became a
Related Person (the "Determination Date"), whichever is higher, as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to Common Stock;
(c) (if applicable) the price per share equal to the Fair Market
Value per share of Common Stock determined pursuant to the immediately
preceding clause (b), multiplied by the ratio of (x) the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Related Person for
any share of Common Stock in connection with the acquisition by the
Related Person of beneficial ownership of any of its holdings of Common
Stock, as adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to Common Stock to (y) the
Fair Market Value per share of Common Stock immediately prior to the
initial acquisition of any share of Common Stock by such Related Person
(as determined by a majority of the Continuing Directors), as adjusted
for any subsequent stock split, subdivision or reclassification with
respect to Common Stock; and
(d) the Company's net income per share of Common Stock for the four
full consecutive fiscal quarters immediately preceding the Announcement
Date, multiplied by the higher of the then price/earnings multiple (if
any) of such Related Person or the highest price/earnings multiple of
the Company within the two-year period immediately preceding the
Announcement Date (such price/earnings multiples being determined as
customarily computed and reported in the financial community).
2. The aggregate amount of cash and Fair Market Value, as of the date
of the date of the consummation of the Business Combination, of consideration
other than cash to be received per share by holders of shares of any class or
series of outstanding Capital Stock, shall be at least equal to the highest
amount determined under clauses (a), (b), (c) and (d) below:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Related Person for any share of Capital Stock in
connection with the acquisition by the Related Person of beneficial
ownership of any of its holdings of such class of Capital Stock, as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of Capital Stock;
(b) the Fair Market Value per share of such class or series of
Capital Stock on the Announcement Date or on the Determination Date,
whichever is higher, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to such class or
series of Capital Stock;
(c) (if applicable) the price per share equal to the Fair Market
Value per share of such class or series of Capital Stock determined
pursuant to the immediately preceding clause (b), multiplied by the
ratio of (x) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by or on
behalf of the Related Person for any share of such class or series of
Capital Stock in connection with the acquisition by the Related Person
of beneficial ownership of any of its holdings of such class or series
of Capital Stock, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to such class or
series of Capital Stock to (y) the Fair Market Value per share of such
class or series of Capital Stock immediately prior to the initial
acquisition of any share of such class or series of Capital Stock (as
determined by a majority of the Continuing Directors), as adjusted for
any subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of Capital Stock;
and
(d) (if applicable) the highest preferential amount per share to
which the holders of shares of such class or series of Capital Stock
would be entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company
regardless of whether the Business Combination to be consummated
constitutes such an event.
3. The consideration to be received by the holders of each particular
class or series of outstanding Capital Stock of the Company in a Business
Combination shall be (a) in cash or (b) if the shares of any particular class
or series of the Capital Stock of the Company beneficially owned by the
Related Person shall have been acquired for a consideration in a form other
than cash, in the same form and of the same kind as the consideration used to
acquire the largest number of shares of such class or series previously
acquired and beneficially owned by he Related Person.
4. After the Determination Date and prior to the consummation of such
Business Combination:
(a) except as approved by a majority of the Continuing Directors,
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative)
payable in accordance with the terms of any outstanding Capital Stock;
(b) there shall have been no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
stock split, stock dividend or subdivision of the Common Stock), except
as approved by a majority of the continuing Directors;
(c) there shall have been an increase in the annual rate of
dividends paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction that has the effect of
reducing the number of outstanding shares of Common Stock, unless the
failure so to increase such annual rate is approved by a majority of the
Continuing Directors:
(d) such Related Person shall not have become the beneficial owner
of any additional shares of Capital Stock except as part of the
transaction that results in such Related Person becoming a Related
Person and except in a transaction that would not result in any increase
in the Related Person's percentage of any class or series of Capital
Stock; and
(e) the Related Person shall have taken steps to ensure that the
Company's Board of Directors included at all times representation by
Continuing Directors proportionate to the ratio that the Capital Stock
which from time to time are owned by persons other than the Related
Person bear to all Capital Stock outstanding at such respective times
(with a Continuing Director to occupy any resulting fractional Board
position).
5. A proxy or information statement complying with the requirements of
the Securities Exchange Act of 934, as amended (the "Exchange Act"), or any
successor thereto, shall have been mailed to all shareholders of the Company
at least 45 days prior to the consummation of the Business Combination
(whether or not such proxy or information statement is required to be mailed
pursuant to the Exchange Act or subsequent provisions) unless such
requirement for a proxy statement is waived by a vote of a majority of the
Continuing Directors. The proxy statement shall contain:
(a) at the front thereof, in a prominent place any recommendations
as to the advisability (or inadvisability) of the Business Combination
which the Continuing Directors, or any of them, may have furnished in
writing; and
(b) if deemed advisable by a majority of the Continuing Directors,
an opinion of a reputable investment banking firm as to the fairness (or
lack of fairness) of the terms of such Business Combination, from the
point of view of the holders of the Company's Capital Stock other than
any Related Person (such investment banking firm to be selected by a
majority of the Continuing Directors, to be a firm which has not
previously been associated with or rendered services to or acted as
manager of an underwriting or as an agent for a Related Person, to be
furnished with all information it reasonably requests and to be paid a
reasonable fee for its services by the Company upon receipt by the
Company of such opinion).
6. After such Related Person has acquired ownership of not less than 10%
of the outstanding shares of any class or series of Capital Stock of the
Company and prior to the consummation of such Business Combination, such
Related Person shall not have:
(a) received the benefit, directly or indirectly (except
proportionately as a shareholder) of any loans, advances, guarantees,
pledges or other financial assistance, or tax credits or other tax
advantages provided by the Company,
(b) made any material changes in the Company's business or equity
capital structure or entered into any contract, arrangement or
understanding with the Company except any change, contract, arrangement
or understanding as may have been approved by a majority of the
Continuing Directors, or
(c) used any asset of the Company as collateral, or compensating
balances, directly or indirectly, for any obligation of such related
Person.
C. As used in this Article II, the following definitions shall apply:
1. The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Act as in effect on
May 21, 1986 (the "Effective Date") (the term "registrant" in said Rule 12b-2
meaning in this case the Company).
2. A person shall be a "beneficial owner" of any Capital Stock (a) which
such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or option, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement
or understanding; or (c) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any shares of
Capital Stock. For the purposes of determining whether a person is a Related
Person pursuant to Paragraph 8 of this Section C, the number of shares of
Capital Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through application of this Paragraph 2 of
Section C, but shall not include any other shares of Capital Stock that may
be issuable pursuant to any agreement, arrangement or understanding or upon
exercise of conversion rights, warrant or options, or otherwise.
3. The term "Business Combination" shall mean:
(a) any merger or consolidation or share exchange of the Company or
any Subsidiary (as hereinafter defined) with (i) any Related Person or
(ii) any other company (whether or not itself a Related Person) which is
or after such merger or consolidation would be an Affiliate (as such
term is hereinafter defined) or Associate (as such term is hereinafter
defined) of a Related Person, in each case irrespective of which
corporation or company is the surviving entity; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition or security arrangement, investment loan, advance,
guarantee, agreement to purchase, agreement to pay, extension of credit,
joint venture participation or other arrangement (in one transaction or
a series of transactions) with, to or for the benefit of any Related
Person or any Affiliate or Associate of any Related Person involving any
assets, securities or commitments of the Company, any Subsidiary or any
Related Person or any Affiliate or Associate of any Related Person
having an Aggregate Fair Market Value and/or involving aggregate
commitments of $5,000,000 or more or constituting more than five percent
of the book value of the total assets (in the case of transactions
involving assets or commitments other than Capital Stock) or five
percent of the shareholders' equity (in the case of transactions in
Capital Stock) of the entity in question (the "Substantial Part"), as
reflected in the most recent fiscal year-end consolidated balance sheet
of such entity existing at the time the shareholders of the Company
would be required to approve or authorize the Business Combination
involving the assets, securities and/or commitments constituting any
Substantial Part; or
(c) the issuance or transfer by the Company or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Company or any Subsidiary to any Related Person or any Affiliate
or Associate thereof (other than an issuance or transfer of securities
which is effected on a pro rata basis to all shareholders of the
Company); or
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Company proposed by or on behalf of, or voted for or
consented to by, a Related Person or Affiliate or Associate thereof; or
(e) any reclassification of securities (including any reverse stock
split) or recapitalization or reorganization of the Company, or any
merger or consolidation of the Company with any of its Subsidiaries or
any other transaction (whether or not with a Related Person or any
Affiliate or Associate thereof) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or series
of Capital Stock or of any securities of a Subsidiary, or any securities
convertible into Capital Stock or into equity securities of any
Subsidiary, that is beneficially owned by any Related Person or any
Affiliate or Associate of any Related Person; or
(f) any other transaction or series of transactions that is similar
in purpose or effect to, or any agreement, contract or other arrangement
providing for any one or more of, the actions specified in the foregoing
clauses (a) through (e).
4. The term "Capital Stock" shall mean all capital stock of the Company
authorized to be issued from time to time under the Articles of Incorporation
of the Company, as such may be amended from time to time.
5. The term "Continuing Director" means any member of the Board of
Directors, while such person is a member of the Board of Directors, who is
not an Affiliate or Associate or representative of the Related Person and was
a member of the Board of Directors prior to the time that the Related Person
became a Related Person, and any successor of a Continuing Director, while
such successor is a member of the Board of Directors, who is not an Affiliate
or Associate or representative of the Related Person and is recommended or
elected to succeed the Continuing Director by a majority of Continuing
Directors then in office.
6. The term "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the Composite Tape, on the New
York Stock Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the Act on which
such stock is listed, or if such stock is not listed on any such exchange,
the highest closing bid quotation with respect to a share of such stock
during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
similar system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as determined
by a majority of the Continuing Directors in good faith; and (c) in the case
of property other than cash or stock, the fair market value of such property
on the date in question as determined in good faith by a majority of the
Continuing Directors.
7. The term "person" shall mean any individual, firm, company or other
entity and shall include any group comprised of any person and any other
person with whom such person or any Affiliate or Associate of such person has
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding voting or disposing of Capital Stock.
8. The term "Related Person" shall mean any person, or Associate or
Affiliate thereof (other than the Company or any Subsidiary and other than
and profit-sharing, employee stock ownership or other employee benefit plan
of the Company or any Subsidiary or any trustee of or fiduciary with respect
to any such plan when acting in such capacity) who (a) is the beneficial
owner of (i) ten percent (10%) or more of the then outstanding shares of any
class of Voting Stock or (ii) Voting Stock representing ten percent (10%) or
more of the votes entitled to be cast by the holders of all the then
outstanding shares of Voting Stock (any such ten percent (10%) ownership to
be hereinafter referred to as a "Ten Percent Interest"); or (b) is an
Affiliate or Associate of the Company and at any time within the five year
period immediately prior to the date in question was the beneficial owner of
a Ten Percent Interest; or (c) is an assignee of or has otherwise succeeded
to any shares of Capital Stock which were at any time within five years prior
to the date in question beneficially owned by any Related Person, and such
assignment or succession shall have occurred in the course of a transaction
or series of transactions not involving a public offering within the meaning
of the Securities Act of 1933.
9. The term "Subsidiary" means any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 under the Act as in
effect on the Effective Date) is beneficially owned by the Company; provided,
however, that for the purposes of the definition of Related Person set forth
in Paragraph 8 of this Section C, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is
beneficially owned by the Company.
10. The term "Voting Stock" shall mean all Capital Stock which by its
term may be voted on all matters submitted to shareholders of the Company
generally.
11. In the event of any Business Combination in which the Company
survives, the phrase "consideration other than cash to be received" as used
in Paragraphs 1 and 2 of Section B of this Article II shall include the
shares of Common Stock and/or the shares of any other class or series of
Capital Stock retained by the holders of such shares.
D. A majority of the Continuing Directors shall have the power and duty
to determine for the purposes of this Article II, on the basis of information
known to them after reasonable inquiry, (a) whether a person is a Related
Person, (b) the number of shares of Capital Stock or other securities
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another, (d) whether the assets that are the subject of any
Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Company or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $5,000,000 or
more, (e) whether the assets or securities that are the subject of any
Business Combination constitute a Substantial part, (f) whether a person has
an agreement, arrangement or understanding with another as to the matters
referred to in Paragraph 6 of Section C of this Article II, and (g) any other
matters with respect to which a determination is required under this Article
II. Any such determination made in good faith shall be binding and
conclusive on all parties.
E. Nothing contained in this Article II shall be construed to relieve
any Related Person from any fiduciary obligation imposed by law.
F. The fact that any Business Combination complies with the provisions
of Section B of this Article II shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or
any member thereof, to approve such Business Combination or to recommend its
adoption or approval to the shareholders of the Company, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the Board of
Directors, or any member thereof, with respect to evaluations or actions and
responses taken with respect to such Business Combination.
ARTICLE III
FACTORS TO BE CONSIDERED IN CONNECTION WITH
PROPOSALS FOR MERGERS AND CERTAIN OTHER BUSINESS COMBINATIONS
The Board of Directors, in evaluating any proposal by another party to
(a) make a tender or exchange offer for any securities of the Company, (b)
effect Business Combination (as defined in Article II), or (c) effect any
other transaction having an effect upon the properties, operations or control
of the Company similar to a tender or exchange offer or Business Combination,
as the case may be, whether by a Related Person (as defined in Article II) or
otherwise, may, in connection with the exercise of its judgment as to what is
in the best interests of the Company and its shareholders, give due
consideration to the following:
A. the consideration to be received by the Company or its
shareholders in connection with such transaction in relation not only to
the then current market price for the outstanding Capital Stock (as
defined in Article II) of the Company, but also to the market price for
the Capital Stock of the Company over a period of years, the estimated
price that might be achieved in a negotiated sale of the Company as a
whole or in part through orderly liquidation, the premiums over market
price for the securities of other corporations in similar transactions,
current political, economic and other factors bearing on securities
prices and the Company's financial condition, future prospects and
future value as an independent corporation;
B. the character, integrity and business philosophy of the other
party or parties to the transaction and the management of such party or
parties;
C. the business and financial conditions and earnings prospects of
the other party or parties to the transaction, including, but not
limited to, debt service and other existing or likely financial
obligations of such party or parties, the intention of the other party
or parties to the transaction regarding the use of the assets of the
Company to finance the acquisition, and the possible effect of such
conditions upon the Company and its subsidiaries and the other elements
of the communities in which the Company and its subsidiaries operate or
are located;
D. the projected social, legal and economic effects of the proposed
action or transaction upon the Company or its subsidiaries, its
employees, suppliers, customers and others having similar relationships
with the Company, and the communities in which the Company and its
subsidiaries do business;
E. the general desirability of the continuance of the Company as an
independent entity; and
F. such other factors as the Continuing Directors (as defined in
Article II) may deem relevant.
ARTICLE IV.
AMENDMENTS.
Notwithstanding any other provisions of the Articles of Incorporation or
the By-Laws of the Company (and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, the Articles of
Incorporation or the By-Laws of the Company), the affirmative vote of the
holders of not less than eighty percent (80%) of the votes entitled to be
cast by the holders of all the then outstanding shares of Voting Stock,
voting together as a single class shall be required to amend, change or
repeal, or adopt any provisions inconsistent with, or which modify or permit
the circumvention of, these Articles I, II, III and IV; provided, however,
that this Article IV shall not apply to, and such eighty percent (80%) vote
shall not be required for, any amendment, change, repeal or adoption
recommended by a majority of the Continuing Directors.
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 19240001D
19260012D ARTICLES OF MERGER OF SECRETARY OF STATE
Fee Paid $25.00 STONINGTON & DEER ISLE FILED
C.B. ----- POWER COMPANY November 23, 1987
Date: 2-8-88 (A MAINE CORPORATION) Agent
INTO
BANGOR HYDRO-ELECTRIC COMPANY
(A MAINE CORPORATION)
Pursuant to 13-A MRSA 903, the Board of Directors of each participating
corporation approve and the undersigned corporations, adopt the following
Articles of Merger:
FIRST: The plan of merger is set forth in Exhibit A attached hereto and
made a part thereof.
SECOND: As to each corporation, the shareholders of which voted on such
plan of merger, the number of shares outstanding and the number of shares
entitled to vote on such plan, and the number of such shares voted for and
against the plan as follows:
Name of No. of Shares No. of Shares Voted Voted
Corporation Outstanding Entitled to Vote For Against
- - ------------ ------------ ----------------- ----- --------
Stonington & 40 40 40 0
Deer Isle
Power Company
THIRD: If the shares of any class were entitled to vote as a class, the
designation and number of the outstanding shares of each such class, and the
number of shares of each such class voted for and against the plan, are as
follows:
Name of No. of Shares No. of Shares Voted Voted
Corporation Outstanding Entitled to Vote For Against
- - ------------ ------------ ---------------- ----- --------
N/A
(Include the following paragraph if the merger was
authorized without the vote of the shareholders of the
surviving corporation. Omit if not applicable.)
FOURTH: The plan of merger was adopted by the participating corporation
which is to become the surviving corporation in the merger without any vote
of its shareholders, pursuant to section 902, subsection 5. The number of
shares of each class outstanding immediately prior to the effective date of
the merger, and the number of shares of each class outstanding immediately
prior to the effective date of the merger, and the number of shares of each
class to be issued or delivered pursuant to the plan or merger of the
surviving corporation are set forth as follows:
Number of Shares Number of Shares
Outstanding to be Issued
Immediately Prior or Delivered
Designation to Effective Pursuant to
of Class Date of Merger the Merger
- - ---------------- ----------------- -----------------
Common 4,450,684 0
7% Preferred 25,000 0
4 1/4 % Preferred 4,840 0
4% Preferred 17,500 0
FIFTH: The address of the registered office in Maine of Stonington &
Deer Isle Power Company, herein designated as the merged corporation, is Main
Street, Sunset, Maine 04683.
The address of the registered office in Maine of Bangor Hydro-
Electric Company, herein designated as the surviving corporation, is 33 State
Street, PO Box 932, Bangor, Maine 04041.
SIXTH: Effective date of the merger (if other than date of filing of
Articles) is . (Cannot exceed 60 days subsequent to filing date of
articles, see 905, sub-1.)
Dated: November 23, 1987
Bangor Hydro-Electric Company
(name of corporation)
By \ss\ Frederick S. Samp
Frederick S. Samp, Clerk
Stonington & Deer Isle Power Company
(name of corporation)
By \ss\ Robert L. Platt
Robert L. Platt, Clerk
I certify that I have custody of the minutes showing the above action by the
shareholders of Stonington & Deer Isle Power Company.
\ss\ Robert L. Platt
Robert L. Platt, Clerk
- - ------------------------------------
* The name of the corporation should be typed, and the document must be
signed by (1) Clerk or (2) by the President of a vice-president and by
the Secretary or an assistant secretary or such other officer as the
bylaws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of the Directors or by such
Directors as may be designated by majority of directors then in office
or (4) if there are not such directors, then by the holders, or such of
them as may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
of the outstanding shares of the corporation.
FORM NO. MBCA-10
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 12, 1987 (the "Agreement")
between BANGOR HYDRO-ELECTRIC COMPANY, a Maine corporation ("Bangor"), and
STONINGTON & DEER ISLE POWER COMPANY, a Maine corporation ("Stonington").
WHEREAS, the Boards of Directors of Bangor and Stonington have each
determined that it is in the best interests of their respective stockholders
for Stonington to merge with and into Bangor (the "Merger"), upon the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger. On the Effective Date (as defined in Section 1.2.),
Stonington shall be merged with and into Bangor in accordance with the
applicable provisions of the law of the State of Maine and the separate
existence of Stonington shall cease. Bangor, as the surviving corporation in
the Merger, shall continue its corporate existence under its present name
pursuant to the laws of the State of Maine.
Section 1.2. Effective Date. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article V, the parties
hereto shall cause the Merger to be consummated by filing Articles of Merger
with the Secretary of State of the State of Maine, in such form as required
by, and
executed in accordance with the relevant provisions of Maine law (the date of
such filing being the "Effective Date").
Section 1.3. Subsequent Actions. If, at any time after the Effective Date,
Bangor shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in Bangor its
right, title or interest in, to or under any of the rights, properties or
assets of Stonington acquired or to be acquired by Bangor as a result of, or
in connection with, the Merger or otherwise to carry out this Agreement, the
officers and directors of Bangor shall be authorized to execute and deliver,
in the name and on behalf of Stonington, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of
Stonington, all such other actions and things as may be necessary or
desirable to vest, perfect or confirm any and all right, title and interest
in, to and under such rights, properties or assets in Bangor or otherwise to
carry out this Agreement.
Section 1.4. Articles of Incorporation. The Articles of Incorporation of
Bangor as in effect on the Effective Date shall continue to be the Articles
of Incorporation of Bangor.
Section 1.5. By-Laws. The By-Laws Of Bangor as in effect on the
Effective Date shall continue to be the By-Laws of Bangor.
Section 1.6. Directors and Officers. The directors and officers of
Bangor as of the Effective Date shall continue to serve as directors and
officers in accordance with the By-Laws of Bangor.
Section 1.7. Conversion of Shares. As of the Effective Date, by virtue
of the Merger and without any action on the part of the holders thereof, each
outstanding share of common stock of Stonington (other than Dissenting Shares
as defined in Section 1.8) shall be cancelled and converted into the right to
receive from Bangor a sum in cash to be computed as follows: 1) a fraction,
the numerator of which is the total common equity of Stonington as of the
last day of the month next preceding the month in which the Effective Date
falls, and the denominator of which is the number of outstanding shares of
common stock of Stonington as of the Effective Date; plus 2) S40,000 divided
by the number of outstanding shares of common stock of Stonington as of the
Effective Date. Total common equity shall be determined from the books of
Stonington subject to the right of Bangor to confirm the amount by an
independent audit.
Section 1.8. Dissenting Shares. Notwithstanding any provision of this
Agreement to the contrary, any share of common stock of Stonington held by a
holder who has demanded payment of the fair value of his share in accordance
with Maine law and as of the Effective Date has neither effectively withdrawn
nor lost his right to make such demand ("Dissenting Shares"), shall not be
converted into or represent a right to receive cash pursuant to Section 1.7,
but the holder thereof shall only be entitled to such rights as are granted
by Maine law.
Section 1.9. Surrender of Shares. Each holder of a certificate or
certificates representing any shares cancelled upon the Merger pursuant to
Section 1.7. may on or after the Effective Date surrender such certificate or
certificates to the Assistant Treasurer of Bangor or his designee for a
period of one year after the Effective Date. At the time of such surrender,
the Assistant Treasurer of Bangor or his designee shall make the cash payment
specified in Section 1.7. Stonington agrees that it shall cause the
distribution to holders of record of common stock as of the Effective Date of
appropriate materials to facilitate such surrender.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STONINGTON
Stonington represents and warrants to Bangor as follows:
Section 2.1. Corporate Organization. Stonington is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Maine and has the requisite corporate power and authority and any
necessary governmental authority to own, operate or lease the properties that
it purports to own, operate or lease and to carry on its business as it is
now being conducted.
Section 2.2. Authority Relative to this Agreement. The execution and
delivery of this Agreement by Stonington and the consummation by Stonington
of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the
part of Stonington and, subject to obtaining any necessary stockholder
approval of the Merger, no other corporate proceeding is necessary for the
execution and delivery of this Agreement by Stonington, the performance by
Stonington of its obligations hereunder and the consummation by Stonington of
the transactions contemplated hereby. This Agreement has been duly executed
and delivered by Stonington and constitutes a legal, valid and binding
obligation of Stonington, enforceable against it in accordance with its terms
subject to laws affecting the enforcement of creditors' rights and the
availability of equitable remedies.
Section 2.3. No Conflict. The execution and delivery of this Agreement
by Stonington do not, and the performance of this Agreement by Stonington
will not, (a) conflict with or violate any law, regulation, court order,
judgment or decree applicable to Stonington by which any of their property is
bound or affected, (b) violate or conflict with either the Articles of
Incorporation or By-Laws of Stonington, or (c) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination or
cancellation of, or result in the creation of a lien or encumbrance of any of
the property or assets of Stonington pursuant to, any contract, instrument,
permit, license or franchise to which Stonington is a party or by which
Stonington or any of its property is bound or affected.
Section 2.4. Required Filings and Consents. Except for filings or
consents listed as conditions precedent to the obligations of Stonington in
Article V, and except for filing and recordation of appropriate merger
documents as required by Maine Law, Stonington is not required to submit any
notice, report or other filing with any governmental authority, domestic or
foreign, in connection with the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby, and no
waiver, consent, approval or authorization of any governmental or regulatory
authority, domestic or foreign, is required to be obtained or made by
Stonington in connection with its execution, delivery or performance of this
Agreement.
Section 2.5. Common Stock of Stonington. As of the date hereof,
Stonington has issued and outstanding 40 shares of common stock, $100 par
value. All outstanding shares of common stock of Stonington are duly and
validly authorized and issued, fully paid and nonassessable, and none of such
shares has been issued in violation of any preemptive rights of any present
or former shareholders. Stonington has no outstanding securities convertible
into or exercisable for its common stock and is not a party to any other
agreements of any nature whereby it may be obligated to issue additional
shares of common stock.
Section 2.6. Liabilities, Debts, or Obligations. Stonington has no
material liabilities, debts or obligations, whether accrued, absolute,
contingent or otherwise, and whether due or
to become due, which have not been fully and adequately disclosed to Bangor.
Section 2.7. Actions. Suits or Proceedings. To the best knowledge of
management of Stonington, other than matters pending before the Maine Public
Utilities Commission, there are no actions, suits or proceedings pending or
threatened against or affecting Stonington or any of its properties before
any court, arbitrator, or governmental body which would, if determined
adversely to Stonington, have a material adverse effect on the financial
condition, business or operations of Stonington or the ability of Stonington
to perform its obligations under this Agreement.
Section 2.8. Title to Properties. Stonington has as of the date hereof
and as of the Effective Date will have good and marketable title to all of
its properties and assets, free and clear of all restrictions, conditions,
liens, mortgages and encumbrances and similar claims, except as disclosed in
writing to Bangor.
Section 2.9. Brokers' or Finders' Fees. Stonington has not incurred and
will not incur any brokers' or finders' fees in connection with the merger.
Section 2.10. Tax Liabilities. Stonington has filed all Federal, State
and local tax returns required to be filed by it, except those for which
valid extensions of time have been granted, and paid all taxes, assessments,
fees and other governmental charges imposed upon Stonington, or upon any of
its properties, income or franchises which are due and payable, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. Except as to taxes which may result from the
transactions contemplated by this Agreement, and taxes related to contributed
property contributed since January 1, 1987 for which no reserve has been
established or exists (although such taxes will be reflected on the financial
statements for the month next preceding the month in which the Effective Date
falls) all known tax liabilities of Stonington are adequately provided for.
Section 2.11. Employment or Similar Contracts. Stonington does not have
any employment, bonus, pension or similar type contracts, plans or agreements
with any persons.
Section 2.12. Books and Records. The books of account and records of
Stonington accurately reflect the amount and nature of its assets and
liabilities and the transactions represented by such books of account and
record as of the date hereof and as of the Effective Date. Such books of
account and records constitute an accurate basis upon which to determine the
investment in property dedicated to public utility service and to support the
appropriate calculations for rate-making and Federal and State income tax
purposes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BANGOR
Bangor represents and warrants to Stonington as follows:
Section 3.1. Corporate Organization. Bangor is a corporation duly
organized, validly existing and in good standing under the laws of the State
Of Maine and has the requisite corporate power and authority and any
necessary governmental authority to own, operate or lease the properties that
it purports to own, operate or lease and to carry on its business as it is
now being conducted.
Section 3.2. Authority Relative to this Agreement. The execution and
delivery of this Agreement by Bangor and the consummation by Bangor of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Bangor and no other corporate proceeding is
necessary for the execution and delivery of this Agreement by Bangor, the
performance by Bangor of the obligations hereunder and the consummation by
Bangor of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Bangor and constitutes a legal, valid and binding
obligation of Bangor, enforceable against it in accordance with its terms,
subject to laws affecting the enforcement of creditors' rights and the
availability of equitable remedies.
Section 3.3. No Conflict. The execution and delivery of this Agreement
by Bangor do not, and the performance of this Agreement by Bangor will not,
(a) violate or conflict with either the Articles of Incorporation or By-Laws
of Bangor, or (b) result in any breach of or constitute a default (or an
event of which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination or cancellation of, or
result in the creation of a lien or encumbrance on any of the property or
assets of Bangor pursuant to, any contract, instrument, permit, license or
franchise to which Bangor is a party or by which Bangor or any of its
property is bound or affected.
Section 3.4. Required Filings and Consents. Except for filings or
consents listed as conditions precedent to the obligations of Bangor in
Article V, and except for filing and recordation of appropriate merger
documents as required by Maine Law, Bangor is not required to submit any
notice, report or other filing with any governmental authority, domestic or
foreign, in connection with the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby, and no
waiver, consent, approval or authorization of any governmental or regulatory
authority, domestic or foreign, is required to be obtained or made by Bangor
in connection with its execution, delivery or performance of this Agreement
Section 3.5. Actions, Suits or Proceedings. To the best knowledge of
the management of Bangor, there are no actions, suits or proceedings pending
or threatened against or affecting Bangor or any of its properties before any
court, arbitrator, or governmental body which would, if determined adversely
to Bangor, have a material adverse effect on the financial condition,
business or operations of Bangor or the ability of Bangor to perform its
obligations under this Agreement.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE MERGER
Section 4.1. Acquisition Proposals. Stonington will notify Bangor
immediately if any inquiries or proposals are received by, any information is
requested from, or any negotiations or discussions are sought to be initiated
or continued with Stonington, in each case in connection with any
acquisition, business combination or purchase of all or any significant
portion of the assets of, or any equity interest in Stonington.
Section 4.2. Conduct of Business of Stonington Pending the Merger.
Stonington covenants and agrees that between the date of this Agreement and
the Effective Date, unless Bangor shall otherwise consent in writing, the
business of Stonington shall be conducted only in, and Stonington shall not
take any action except in, the ordinary course of business and in a manner
consistent with past practice; and Stonington will use its best efforts to
preserve substantially intact the business organization of Stonington, to
keep available the services of the present officers, employees and
consultants of Stonington and to preserve the present relationships of
Stonington with customers, suppliers and other persons with which Stonington
has significant business relations.
Section 4.3. Provision of Records and Information. Stonington shall
permit representatives of Bangor to make such independent audit and
examination of its books, contracts, tax returns, orders and other records
and properties and shall
furnish Bangor with such additional information as Bangor may reasonably
request. If for any reason this Merger is not consummated, Bangor will not
use confidential information obtained from Stonington in any manner
detrimental to Stonington and will promptly return to Stonington all
materials obtained during the course of any investigation.
Section 4.4. Dividends. Stonington will not declare or pay any
dividends on any outstanding shares or purchase any such shares or make any
other distribution on such shares prior to the Effective Date.
ARTICLE V
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES
The obligations of Bangor and Stonington pursuant to this Agreement are
subject to the fulfillment and satisfaction at, or prior to the Effective
Date, of each of the following conditions:
Section 5.1 Stockholder Approval. The Merger and this Agreement shall
have been approved and adopted by the stockholders of Stonington.
Section 5.2. Approval by Boards of Directors. All actions required by
law to have been taken by the Board of Directors of Bangor and the Board of
Directors of Stonington in order to effect the Merger and perform this
Agreement shall have been duly and validly taken.
Section 5.3. Representations and Warranties. The representations and
warranties of Bangor and Stonington set forth in Articles II and III shall be
true and correct in all material respects on the date hereof and shall also
be true and correct in all material respects on and as of the Effective Date.
Section 5.4. Approval by the Maine Public Utilities Commission. Bangor
and Stonington shall have obtained all approvals required under Maine Law
from the Maine Public Utilities Commission in order to effect the Merger and
perform this Agreement.
Section 5.5. Approval by the Federal Energy Regulatory Commission.
Bangor and Stonington shall have obtained all approvals required under
Federal Law from the Federal Energy Regulatory Commission in order to effect
the Merger and perform this Agreement.
Section 5.6. Other Required Filings, Consents, Approvals, Licenses,
Exemptions or Registrations. Other than the filing of Articles of Merger
with the Secretary of State of the State of Maine, all other required filings
and all other consents, approvals, licenses, exemptions or registrations
required to be obtained from any court or governmental department,
commission, board, bureau, agency or instrumentality necessary in order to
effect the Merger and perform this Agreement shall have been obtained.
ARTICLE VI
TERMINATION AND ABANDONMENT
This Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Date:
Section 6.1. Mutual Agreement. By mutual agreement of the Boards of
Directors of Bangor and Stonington;
Section 6.2. By Bangor. By the Board of Directors of Bangor if at any
time before the Effective Date, any of the representations or warranties
contained in Article II shall be incorrect or if Stonington is otherwise in
default of this Agreement;
Section 6.3. By Stonington. By the Board of Directors of Stonington if
at any time before the Effective Date, any of the representations or
warranties contained in Article III shall be incorrect or if Bangor is
otherwise in default of this Agreement.
Section 6.4. By Passage of Time. By either party upon two (2) days'
written notice if the Effective Date shall not have occurred by February 29,
1988.
ARTICLE VII
AMENDMENT AND WAIVER
Section 7.1. Amendment. This Agreement may be amended by the parties
hereto at any time prior to the Effective Date. Any amendment shall be by an
instrument in writing signed by the parties hereto.
Section 7.2. Waiver. At any time prior to the Effective Date, either
party hereto may (a) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and
(b) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of a party hereto to any such waiver shall
be valid only as against such party and only if set forth in an instrument in
writing signed by such party.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and delivered personally or sent by
mail to the parties as follows:
(a) If to Bangor, to:
Robert S. Briggs, Esq.
Bangor Hydro-Electric Company
33 State Street
P. O. Box 932
Bangor, ME 04401
(B) if to Stonington, to:
Robert Platt
Stonington & Deer Isle Power Company
Sunset, ME 04683
Section 8.2. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 8.3. Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes any and all other prior agreements
and undertakings, both written and oral, with respect to the subject matter
hereof, and except as otherwise expressly provided herein, is not intended to
confer upon any other person any rights or remedies hereunder.
Section 8.4. Assignment. This Agreement is not assignable by either
party in any respect without the prior written consent of the other.
Section 8.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maine.
Section 8.6. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which shall together constitute one and the same Agreement.
Section 8.7. Expenses. Both parties to this Agreement shall bear their
respective expenses incurred in connection herewith whether or not this
Agreement is consummated, including without limitation the fees of their
respective counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first stated above by their duly authorized officers.
WITNESSES: BANGOR HYDRO-ELECTRIC COMPANY
\ss\ Robert S. Briggs By: \ss\ T.A. Greenquist
Its: President
\ss\ ... STONINGTON & DEER ISLE POWER COMPANY
By: \ss\
Its: Chairman of the Board
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 19240001D SECRETARY OF STATE
Fee Paid $20.00 STATEMENT OF FILED
C.B. ----- RESOLUTION ESTABLISHING December 21, 1989 Date:
12-21-89 SERIES OF SHARES OF Agent
BANGOR HYDRO-ELECTRIC COMPANY
(8.76% Preferred Stock)
Pursuant to 13-A MRSA 503, the undersigned corporation submits the
following for the purpose of establishing and designating a series of shares
and fixing and determining the relative rights and preferences thereof:
FIRST: The attached resolution establishing and designating the
series and fixing and determining the relative rights and preferences thereof
was duly adopted by the Board of Directors on December 20, 1989.
SECOND: The Articles expressly grant to the Board of Directors the
authority to make such a resolution.
THIRD: The address of the registered office of the corporation is:
33 State Street, PO Box 932, Bangor ME 04401.
Dated: December 20, 1989
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Frederick S. Samp
signers Frederick S. Samp, Clerk
13-A MRSA 104.
- - ------------------------------------
* The name of the corporation should be typed, and the document must be
signed by (1) Clerk or (2) by the President of a vice-president and by
the Secretary or an assistant secretary or such other officer as the
bylaws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of the directors or by such
directors as may be designated by majority of directors then in office
or (4) if there are not such directors, then by the holders, or such of
them as may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
of the outstanding shares of the corporation.
FORM NO. MBCA-7
FURTHER RESOLVED that none of the holders of any of the classes or
series of the Preferred Stock, and none of the holders of the Common Stock,
of the Company shall have the preemptive right to subscribe for and take
shares of the 8.76% Preferred Stock; and
FURTHER RESOLVED that the Company does hereby appoint and designate
Smith Barney, Harris Upham & Co. Incorporated of New York as its
representative in this sale of the 8.76% Preferred Stock, and does hereby
authorize said Smith Barney, Harris Upham & Co. Incorporated to dispose of
said 8.76% Preferred Stock at private sale at part value; and
FURTHER RESOLVED that the appropriate officers of the Company be and
they hereby are authorized and directed to file with the Maine Public
Utilities Commission an application for approval of the issuance of the 8.76%
Preferred Stock, including any and all amendments thereto, and to do all
other acts necessary or desirable in order to secure the approval of said
Maine Public Utilities Commission; and
FURTHER RESOLVED that upon receipt of the Order of said Maine Public
Utilities Commission relative to the issuance and sale of the 8.76% Preferred
Stock, said Order is to be recorded upon the books of the Company by its
Clerk or Assistant Clerk; and
FURTHER RESOLVED that pursuant to Article XII of the By-Laws of the
Company, said By-Laws be amended in order to set forth the dividend,
designation, terms, conditions and restrictions relative to the 8.76%
Preferred Stock, as follows:
(a) The first paragraph of Article XI, Section 2, is hereby amended to
read as follows:
"Section 2. The 250,000 shares of Preferred Stock shall be available
for classification and reclassification in different classes or series
from time to time. Subject to reclassification upon retirement by
redemption or otherwise, 25,000 shares shall be 7% Preferred Stock,
17,500 shares shall be 4% Preferred Stock, Series A, 4,840 shares shall
be 4 1/4% Preferred Stock, and 150,000 shares shall be 8.76% Preferred
Stock."
(b) The first line of the second paragraph of Article XI, Section 2, is
hereby amended to read as follows:
"The remaining shares, 52,660 in number, plus additional shares...
(c) The fourth sentence of Article XI, Section 3 is hereby amended by
deleting the words "and paragraph (e) of Section 7" so that the sentence
reads as follows:
"Except as provided in paragraph (b) of Section 6, the holders of the
Common Stock are entitled to receive all additional surplus or net
profits which the Directors may order distributed in dividends, after
the dividends above provided for shall have been paid or set apart."
(d) Article XI, Section 4(b) is hereby amended to read as follows:
"(b) If at any time dividends payable on the Preferred Stock shall be
in default in an amount equal to or exceeding four quarterly dividend
payments, or if the Company shall fail to make any required sinking fund
payment on the Preferred Stock, then, until all dividends or sinking
fund payments so in default have been paid or declared and set apart for
payment, the holders of shares of Preferred Stock of each and every
class or series, voting as a single class, shall be entitled, at any
annual meeting during which dividends or sinking fund payments are so in
default, to elect the smallest number of Directors necessary to
constitute a majority of the full Board of Directors, the balance of the
directors to be elected by the holders of shares having general voting
powers."
(e) Article XI, Section 4 is hereby amended by adding a subsection (c)
to read as follows:
"(c) Notwithstanding the provisions of Section 5 of Article III of these
By-Laws, except as provided in paragraph (b) of this Section 4, the
holders of the 8.76% Preferred Stock shall not be entitled to vote at
any meeting of stockholders."
(f) Article XI, Section 5 is hereby amended to read as follows:
Section 5. In case of liquidation or dissolution of the Company, the
assets, irrespective of whether they shall consist of capital assets or
accumulated earnings, shall be distributed as follows: All holders of
Preferred Stock shall be entitled to be paid in full both the par amount
of their shares and an amount equal to the unpaid dividends accumulated
and accrued thereon and, in the case of the 8.76% Preferred Stock, if
such liquidation or dissolution is voluntary an amount equal to the
premium specified in Section 6(a) below, before any amount shall be paid
to the holders of the Common Stock, and in case the assets shall not be
sufficient to pay in full all of the Preferred Stock and dividends
accumulated and accrued thereon, and applicable premium, then the
principal thereof shall first be paid pro rata, thereafter a pro rata
distribution of any excess shall be made on account of the accumulated
dividends, based on the total amount of unpaid dividends accumulated and
accrued thereon, and thereafter a pro rata distribution of any excess
shall be made on account of applicable premium, based on the total
amount of applicable premium, but after such payment to the holders of
the Preferred Stock, the remaining assets and funds shall be paid to the
holders of the Common Stock, according to their respective shares."
(g) Article XI, Section 6 is hereby redesignated as Article XI Section
6(a) and is hereby amended to read as follows:
"Section 6. (a) The 7% Preferred Stock shall bear dividends at the
rate of 7% per annum and shall not be redeemable. The 4% Preferred
Stock, Series A, shall bear dividends at the rate of 4% per annum and
shall be redeemable at 112% if called on or prior to October 1, 1950; at
111% thereafter through October 1, 1951; and after October 1, 1951 at
110%, plus accrued dividends in every case. The 4 1/4% Preferred Stock
shall bear dividends at the rate of 4 1/4% per annum and shall be
redeemable at 102% is called on or prior to April 1, 1954; at 101%
thereafter through April 1, 1959; and after April 1, 1959 at 100%; plus
occurred dividends in every case. Except as provided in Sections 6(d)
through 6(o), the 8.76% Preferred Stock shall bear dividends at the rate
of 8.76% per annum and shall not be redeemable prior to December 27,
1994. Dividends on the 8.76% Preferred Stock shall be cumulative and
paid quarterly no later than the first business day following each
January 19, April 19, July 19, and October 19. The 8.76% Preferred
Stock shall be redeemable at the option of the Company as follows:
At 105.63% if called on or prior to December 27, 1995;
At 105.01% if called on or prior to December 27, 1996;
At 104.38% if called on or prior to December 27, 1997;
At 103.75% if called on or prior to December 27, 1998;
At 103.13% if called on or prior to December 27, 1999;
At 102.50% if called on or prior to December 27, 2000;
At 101.88% if called on or prior to December 27, 2001;
At 101.25% if called on or prior to December 27, 2002;
At 100.63% if called on or prior to December 27, 2003;
and after December 27, 2003 at 100%;
plus accrued dividends in every case.
Preferred Stock, which is the subject of redemption, may be called in whole
or in part upon any dividend payment date by appropriate resolution adopted
by the Board of Directors at any regular or special meeting upon 60 days'
written notice to the owners thereof of record to be given by mailing copies
of the notice of redemption, postage prepaid, addressed to such owners at
their addresses as shown on the books of the Company. In the case of the
8.76% Preferred Stock, notice of redemption to the owners thereof of record
shall be by certified mail, postage prepaid, or by a nationally recognized
overnight delivery service. If less than all of the outstanding shares of
any class or series of Preferred Stock shall be redeemed at any time, the
stock to be so redeemed shall be determined by lot, in such manner as the
Board of Directors may determine and prescribe, except that the shares of the
8.76% Preferred Stock shall be redeemed pro rata."
(h) Article XI, Section 6 is hereby amended by adding a subsection (b)
to read as follows:
"(b) The 8.76% Preferred Stock shall also be subject to redemption
through the operation of a sinking fund (hereinafter called the Sinking
Fund) at the redemption price of $100 per share plus an amount equal to
the dividends accrued and unpaid thereon to the redemption date, whether
or not earned or declared (the Sinking Fund Redemption Price). For the
purposes of the Sinking Fund, out of any net assets of the Company
legally available therefor remaining after full cumulative dividends
upon all Preferred Stock then outstanding to the end of the current
dividend period therefor shall have been paid or declared and set apart
for payment, the Company shall set aside in cash annually on December 27
in each year commencing with December 27, 1995, an amount sufficient to
redeem at the Sinking Fund Redemption Price, 15,000 shares of the 8.76%
Preferred Stock. The Sinking Fund shall be cumulative so that if on any
such December 27 the net assets of the Company legally available
therefor shall be insufficient to permit any such amount to be set aside
in full, or if for any other reason such amount shall not have been set
aside in full, the amount of the deficiency shall be set aside but
without interest, before any dividend shall be paid or declared, or any
distribution made on any junior shares or any junior shares shall be
purchased, redeemed, or otherwise acquired by the Company, or any monies
shall be paid to or set aside for by the Company, or any monies shall be
paid to or set side for the purchase or redemption of any junior shares.
Notwithstanding the foregoing, the Company may at any time (1) pay
dividends in junior shares or (2) purchase, redeem or otherwise acquire
junior shares in exchange for, or out of the proceeds from the current
sale of, other junior shares. As used herein the term "junior shares"
shall mean Common Stock or any other shares ranking junior to the 8.76%
Preferred Stock either as to dividends upon liquidation, dissolution or
winding up. Monies in the Sinking Fund shall be applied (and disbursed)
on such December 27 to redemption of the shares of the 8.76% Preferred
Stock. The Company shall, prior to each such Sinking Fund redemption,
give notice of redemption, as specified in subsection (a) of this
Section 6, of such number of shares of the 8.76% Preferred Stock as may
be required to satisfy the Sinking Fund."
(i) Article XI, Section 6 is hereby amended by adding a subsection (c)
to read as follows:
"(c) In addition, the Company shall have the right, at its option, to
redeem at the Sinking Fund Redemption Price on December 27, 1995 and on
any December 27 thereafter an additional number of shares of the 8.76%
Preferred Stock up to but not exceeding 15,000 shares, provided,
however, that the aggregate number of shares of the 8.76% Preferred
Stock which may be redeemed pursuant to this Section 6(c) may not exceed
30,000 shares. Notice of any such redemption shall be as specified in
subsection (a) of this Section 6. These rights shall not be cumulative
and shall be lost to the extent not exercised. Any redemption of shares
of the 8.76% Preferred Stock pursuant to this Section 6(c) shall not
operate to reduce the number of shares which the Company is obligated to
redeem pursuant to Section 6(b)."
(j) Article XI, Section 6 is hereby amended by adding a subsection (d)
to read as follows:
"(d) At all times that dividends on the 8.76% Preferred Stock are
payable pursuant to these By-Laws, the Company will treat the 8.76%
Preferred Stock as stock and not as indebtedness and will treat the
dividends paid with respect to the 8.76% Preferred Stock as dividends
(within the meaning of Section 316 of the Internal Revenue Code of 1986
as amended (the "Code")) to the maximum extent permitted under the
Code."
(k) Article XI, Section 6 is hereby amended by adding a subsection (e)
to read as follows:
"(e) At all times that dividends on the 8.76% Preferred Stock are
payable pursuant to these By-laws, the Company will not:
"(1) take any action which would require or permit the Company to
treat the dividends paid with respect to the 8.76% Preferred Stock as
interest for any purpose or to treat the 8.76% Preferred Stock as
indebtedness for any purpose;
"(2) exercise any option or election that may at any time be
available under the Code or otherwise to deduct all or part of the
dividends paid with respect to the 8.76% Preferred Stock if so doing
would reduce the after-Federal income tax yield per annum on such
dividends to any corporate holder of the 8.76% Preferred Stock;
"(3) change its place of incorporation, by merger or otherwise, to
a jurisdiction other than the District of Columbia or one of the 50
states of the United States; or
"4) otherwise take any action which would cause the Dividend-
Received Deduction contained in Section 243 of the Code to cease to be
available with regard to dividends paid with respect to the 8.76%
Preferred Stock to a corporate holder of 8.76% Preferred Stock otherwise
eligible to claim the Dividend-Received Deduction."
(l) Article XI, Section 6 is hereby amended by adding a subsection (f)
to read as follows:
"(f) In the event that the Company shall fail to take the action
required in subsection (d) of this Section 6, or shall take any of the
actions referred to in subsection (e) of this Section 6, then the
Company will pay to each corporate holder of 8.76% Preferred Stock, in
addition to all dividends required to be paid on the 8.76% Preferred
Stock, such amount as is necessary so that the after-Federal income tax
yield per annum from dividends and such additional payments on the 8.76%
Preferred Stock is 7.8665% (or 7.5538% in the case of a corporate holder
subject to Section 832(b) of the Code) to such corporate holder at a
Federal income tax rate equal to 34%. Payments pursuant to the
preceding sentence shall be made to the extent necessary with respect to
any and all dividends on the 8.76% Preferred Stock (whether such
dividends are paid before, at the same time as or after the action or
failure to act); provided, that no such payments pursuant to this
subsection (f) shall be made to any particular corporate holder until
such corporate holder has provided the Company with a written notice
specifying (1) that such holder requires indemnification under this
subsection (f), (2) the amount to be paid by the Company to such holder,
and (3) supporting calculations and that in the event that a corporate
holder makes a written demand for indemnification pursuant to this
subsection (f), the Company shall thereafter, on each date subsequent to
the date of the action or failure to act giving rise to such demand on
which dividends are paid on the 8.76% Preferred Stock, in addition to
such dividends, pay to such holder the amount set forth in the demand
for indemnification previously furnished to the Company until such time
as such holder furnishes written notice, including supporting
calculations, to the Company that indemnification is required, whether
pursuant to this subsection, subsection (h) or otherwise, at a greater
or lesser rate."
(m) Article XI, Section 6 is hereby amended by adding a subsection (g)
to read as follows:
"(g) If the Company shall pay a dividend in respect of the 8.76%
Preferred Stock which constitutes, in whole or in part, a return of
capital for Federal income tax purposes not eligible for the Dividend-
Received Deduction, then the Company will pay to each corporate holder
of 8.76% Preferred Stock, in addition to all dividends required to be
paid on the 8.76% Preferred Stock, an amount (the "Indemnity Amount") as
is necessary so that the after-Federal income tax yield per annum from
such non-qualifying dividends and such additional payments on the 8.76%
Preferred Stock is 7.8665% (or 7.5538% in the case of a corporate holder
subject to Section 832(b) of the Code). For the purposes of calculating
the Indemnity Amount it will be assumed that each corporate holder is
subject to, and pays, Federal income tax at the highest marginal rate in
the case of "ordinary income" and the highest marginal rate in the case
of long-term "capital gains," in the year in which the Indemnity Amount
is paid; provided, that no such Indemnity Amount shall be paid to any
particular corporate holder until the earlier of (1) the time of the
sale, exchange or redemption (including a sinking fund purchase or
redemption) of the 8.76% Preferred Stock, or (2) the time additional
Federal income taxes, including estimated taxes, resulting from the
payment of dividends on the 8.76% Preferred Stock in any calendar year
which constitute, in whole or in part, a return of capital for Federal
income tax purposes not eligible for the Dividend-Received Deduction,
are paid or would have been paid if the corporate holder were liable for
Federal income tax; provided, further, that in the case of a sale or
exchange of the 8.76% Preferred Stock, such Indemnity Amount shall be
paid at the later of 1) fourteen (14) days after notice of such sale or
exchange is given to the Company by such corporate holder, or (2) the
occurrence of such sale or exchange; and provided, further, that if such
Indemnity Amount cannot be determined at the time of the sale, exchange
or redemption (i.e., the sale, exchange or redemption of the 8.76%
Preferred Stock are, in whole or in part, a return of capital) then the
Company shall pay such Indemnity Amount at the earlier of (1) forty-five
(45) days after the end of the calendar year, or (2) the time when the
Indemnity Amount can be determined."
(n) Article XI, Section 6 is hereby amended by adding a subsection (h)
to read as follows:
"(h) In the event that, after December 27, 1989, Federal legislation is
enacted (whether in the form of an amendment of the Code or otherwise)
which (whether by the terms of such legislation or by U.S. Treasury
regulations promulgated thereunder or a ruling published by the Internal
Revenue Service) (1) causes or makes any corporate holder of 8.76%
Preferred Stock ineligible to claim the Dividend-Received Deduction in
connection with dividends paid on the 8.76% Preferred Stock or (2)
reduces the effective rate, either directly or indirectly (such as by
taking into account any proration required by Section 832(b) of the
Code), of the Dividend-Received Deduction which any corporate holder of
8.76% Preferred Stock may claim in connection with dividends paid on the
8.76% Preferred Stock, the Company will pay to each such corporate
holder, in addition to all dividends required to be paid on the 8.76%
Preferred Stock, such amount as is necessary so that the after-Federal
income tax yield per annum from dividends and such additional payments
on the 8.76% Preferred Stock is 7.8665% (or 7.5538% in the case of a
corporate holder subject to Section 832(b) of the Code) to such
corporate holder based on an assumed Federal income tax rate of 34%.
Payments pursuant to the preceding sentence shall be made to the extent
necessary with respect to any and all dividends on the 8.76% Preferred
Stock (whether such dividends are paid before, at the same time as or
after the enactment of such legislation or the issuance of such
regulations or ruling); provided, that no such payments shall be made to
any particular corporate holder until such holder has provided the
Company with a written notice, at any time subsequent to the effective
date of such legislation, regulations or ruling, as the case may be,
specifying (i) that such holder requires indemnification from the
Company for the amount of loss incurred by the holder due to such
legislation, regulations or ruling, as the case may be, (ii) the amount
to be paid by the Company to such holder so that the after-Federal
income tax yield per annum from dividends and such additional payments
on the 8.76% Preferred Stock is 7.8665% (or 7.5538% in the case of a
corporate holder subject to Section 832(b) of the Code) to such
corporate holder based on an assumed Federal income tax rate of 34% and
(iii) supporting calculations. In the event that a corporate holder
makes a written demand for indemnification pursuant hereto, the Company
shall thereafter, on each date subsequent to the effective date of such
legislation, regulations or ruling, as the case may be, on which
dividends are paid on the 8.76% Preferred Stock, in addition to such
dividends, pay to such holder the amount set forth in the demand for
indemnification previously furnished to the Company until such time as
such holder furnishes written notice, including supporting calculations,
to the Company that indemnification is required, whether pursuant to
this subsection (h), subsection (f) or otherwise, at a greater or lesser
rate. In the event that further legislation, U.S. Treasury regulations
or rulings published by the Internal Revenue Service, if any, further
limit the eligibility to claim the Dividend-Received Deduction in
connection with dividends paid with respect to the 8.76% Preferred Stock
by any corporate holder thereof or further reduce the effective rate of
the Dividend-Received Deduction which any corporate holder of 8.76%
Preferred Stock may claim in connection with dividends paid on the 8.76%
Preferred Stock, then any such corporate holder may deliver another
notice pursuant to this subsection (h) requesting a new payment amount."
(o) Article XI, Section 6 is hereby amended by adding a subsection (i)
to read as follows:
"(i) In the event that the Company shall become obligated to make a
payment to any holder of 8.76% Preferred Stock pursuant to subsection
(h) of this Section 6, then the Company shall have the right at its
option within 30 days after receipt of notice from any holder seeking
indemnification pursuant to subsection (h) (but not at a time thereafter
that the Company is no longer obligated to make such a payment), to
purchase all or a portion of the 8.76% Preferred Stock held by such
holder at $100 per share plus accrued dividends to the date of purchase;
provided, that, the Company shall have no obligation to make a payment
pursuant to subsection (h) and shall have no right to purchase the 8.76%
Preferred Stock of a holder pursuant to this subsection (i) if such
holder waives the Company's obligation to make payment pursuant to
subsection (h) within 60 days after receipt of the Company's notice
exercising its right to purchase 8.76% Preferred Stock pursuant to this
subsection (i); and provided, further, that if the Company becomes
obligated (and such obligation has not been waived) to make payments
pursuant to such subsection (h) to holders of 50% or more of then
outstanding 8.76% Preferred Stock, the Company shall be entitled to so
purchase all, but not part, of the then outstanding 8.76% Preferred
Stock; and provided, further, that in no event shall the Company be
relieved of its obligation to make any payment required under subsection
(h) with respect to any dividends payable, prior to the actual date of
purchase by the Company of 8.76% Preferred Stock, to any corporate
holder whose 8.76% Preferred Stock is purchased by the Company pursuant
to this Section 6."
(p) Article XI, Section 6 is hereby amended by adding a subsection (j)
to read as follows:
"(j) In calculating the payments to be made to a corporate holder under
subsections (f), (g) or (h), such holder shall take into account any and
all payments (including, without limitation, taxes, interest and
penalties) that such holder is required to make as a result of the event
or events that resulted in the demand for indemnification pursuant to
such subsections. All amounts payable under subsections (f), (g) and
(h) of this Section 6 shall be considered contract claims taxable as
ordinary income not eligible for the Dividend-Received Deduction."
(q) Article XI, section 6 is hereby amended by adding a subsection (k)
to read as follows:
"(k) In computing "after-Federal income tax yield" to any corporate
holder of 8.76% Preferred Stock in any particular taxable year from
dividends paid with respect to the 8.76% Preferred Stock for purposes of
this Section 6, (1) only Federal income taxes shall be considered, (2)
the effective rate of the Dividend-Received Deduction available to a
corporate holder of 8.76% Preferred Stock in any particular taxable year
shall be determined by taking into account any applicable provision of
the Code (including, without limitation, section 832(b)) that reduces or
enlarges the amount of any other deduction, exclusion or adjustment that
would otherwise be available to such holder for such taxable year, if
such reduction or enlargement is required to be made because such holder
is entitled to the benefits of the Dividend-Received Deduction and by
taking into account any reduction or enlargement in the effective rate
of the Dividend-Received Deduction required to be made because such
holder or any income or loss of such holder is subject to any applicable
provision of the Code other than Section 234 (a)(1), (3) except to the
extent provided in clause (2) above, the Dividend-Received Deduction of
the 1990 calendar year shall be deemed to be 70%, (4) for the purposes
of subsection (j) the maximum marginal rate applicable to dividends
received by corporations in the first full taxable year in which the
8.76% Preferred Stock is issued and outstanding shall be deemed to be
34%, (5) except to the extent required by the provisions of clause (2)
above, the dividends paid with respect to the 8.76% Preferred Stock to a
corporate holder thereof in such particular taxable year shall be deemed
to be the only item of income for such particular taxable year of such
holder, (6) the Dividend-Received Deduction, if actually available
(disregarding any disallowance pursuant to Code Section 246A) to such
holder for such particular taxable year, and only to the extent actually
available to such holder for such particular taxable year, as detailed
in clause (2) above, shall be deemed to be the only deduction or
exclusion available to such holder, except as otherwise provided in
clause (2) above, and (7) for the purposes of subsection (j) the rate of
Federal income tax imposed with respect to the receipt of ordinary
income (i.e., contract claims) shall be deemed to be the maximum
marginal rate applicable to ordinary income received by corporations in
such particular taxable year. In the case of a holder of 8.76%
Preferred Stock who did not own any 8.76% Preferred Stock for the 1990
calendar year, the computation shall be made as though such holder has
owned 8.76% Preferred Stock in such taxable year."
(r) Article XI, Section 6 is hereby amended by adding a subsection (1)
to read as follows:
"(1) Any references to the after-Federal income tax yield per annum
referred to in this Section 6 shall be adjusted in accordance with
subsection (o) of this Section 6."
(s) Article XI, Section 6 is hereby amended by adding a subsection (m)
to read as follows:
"(m) As referred to in Note 5 to the Company's financial statements
included in its Quarterly Report on Form 10-Q for the quarter ended
September 30, 1989, an adjustment in the Federal income tax liability of
the Company has been proposed by the Internal Revenue Service. Such
proposed adjustment relates to the Company's Federal income tax
treatment of certain issues which relate to the Company's ownership and
subsequent sale of its interest in the Seabrook project and the
Company's abandonment of Seabrook Unit 2."
(t) Article XI, Section 6 is hereby amended by adding a subsection (n)
to read as follows:
"(n) In the event that, as a result of the proposed adjustment asserted
in the Internal Revenue Service Audit described in subsection (m) above,
"(1) the Company shall reduce or be required by generally accepted
accounting principles, the Federal Energy Regulatory
Commission or the Maine Public Utilities Commission to reduce
its Retained Earnings in the cumulative amount, including tax
liability, interest and penalties, of $15 million or more; and
"(2) during the twelve-month period subsequent to the reduction or
required reduction in Retained Earnings referred to in
subsection (n)(1) above, the holders of the 8.76% Preferred
Stock shall not have received written notification, addressed
to them and dated after the date of the reduction or required
reduction in Retained Earnings referred to in subsection
(n)(1) above, from either Moody's Investors Service, Inc.
("Moody's") or Standard and Poor's Corporation ("S&P") that
the 8.76% Preferred Stock has a rating of at least "baa3" from
Moody's or "BBB-" from S&P; and
"(3) any holder provides written notice to the Company, within 30
days after the beginning of each of the fifth through twelfth
quarters following the reduction in Retained Earnings or
requirement to reduce Retained Earnings referred to in
subsection (n)(1) above, that it elects to receive an
increased dividend rate on the 8.76% Preferred Stock held by
it pursuant to this subsection (n);
then commencing at the beginning of the first quarter during which the
notice referred to in subsection (n)(3) above is provided, the dividend
rate payable on such 8.76% Preferred Stock for that quarter and each
subsequent quarter shall increase by 50 basis points per quarter to a
maximum increase of 300 basis points (an 11.76% dividend rate per
annum); provided, that so long as the Company is obligated to pay an
increased dividend rate pursuant to this subsection (n), the Company
shall have the right at its option to purchase, upon 30 days' written
notice to each holder of 8.76% Preferred Stock as to which notice
referred to in subsection (n)(3) above has been given, all, but not
part, of such 8.76% Preferred Stock held by such holder at $100 per
share plus accrued dividends to the date of purchase; provided, further,
that under no circumstances shall the Company be relieved of its
obligation to pay an increased dividend pursuant to this subsection (n)
prior to the actual date of purchase by the Company of the 8.76%
Preferred Stock; and provided, further, that if subsequent to the
receipt of the notice referred to in subsection (n)(3) above, the
Company shall receive notification from Moody's or S&P that the 8.76%
Preferred Stock has a rating of at least "baa3" from Moody's or "BBB-"
from S&P, then (i) the Company shall give notice to each holder of 8.76%
Preferred Stock entitled to an increased dividend rate pursuant to this
subsection (n) that, commencing with the beginning of the quarter
following the mailing of such notification, the dividend rate payable on
such 8.76% Preferred Stock shall be reduced to 8.76% per annum, and (ii)
the Company shall have no further right to purchase the 8.76% Preferred
Stock pursuant to this subsection (n)."
(u) Article XI, Section 6 is hereby amended by adding a subsection (o)
to read as follows:
"(o) So long as the Company is required to pay any holder of 8.76%
Preferred Stock an increased dividend rate pursuant to subsection (n),
the after-Federal income tax yield applicable to any payments to be made
pursuant to subsections (f), (g) and (h) of this Section 6 shall be
increased as follows:
After-Federal
Increase in After-Federal Income Tax Yield
Dividend Rate Income Tax to Holder Subject
(Basis Points) Yield to Section 832(b)
--------------- ------------- -----------------
50 8.3155 7.9849
100 8.7645 8.4161
150 9.2135 8.8472
200 9.6625 9.2784
250 10.1115 9.7095
300 10.5605 10.1407"
FURTHER RESOLVED that any and all requirements of prior notice of
proposed amendments or alterations of the By-Laws, including the notice
requirements contained in Article XII, Section 2 of the By-Laws, are hereby
waived, and that the foregoing amendments to the By-Laws are adopted
effective as of the date hereof without further action of the Board of
Directors; and
FURTHER RESOLVED that the appropriate officers of the Company and each
of them be and they are hereby are authorized and directed to prepare,
execute and file with the Secretary of State of the State of Maine, a
Statement of Resolution Establishing Series of Shares in accordance with 13-A
M.R.S.A. 503 incorporating the relative rights and preferences of the 8.76%
Preferred Stock set forth in Article XI of the By-Laws of the Company as
hereinbefore amended and including such other information as may be required
by applicable law, rule or regulation; and
FURTHER RESOLVED that the form of proposed agreement (draft of December
14, 1989) presented to the Board of Directors for the sale of the 8.76%
Preferred Stock to the purchaser named therein is hereby approved; that the
Chairman of the Board and Chief Executive Officer, the President and Chief
Operating Officer, the Treasurer, or any Vice President of the Company or any
of them be and each of them is hereby authorized to execute the same in
substantially the form presented as aforesaid with such changes as the
officer executing the same may approve acting under the advice of counsel for
the Company, and that the execution and delivery of said agreement shall be
conclusive evidence of such approval; and
FURTHER RESOLVED that the form of certificate for the 8.76% Preferred
Stock as presented to the Board of Directors is hereby approved; that the
Chairman of the Board and Chief Executive Officer, the President and Chief
Operating Officer, the Treasurer, or any Vice President of the Company or any
of them be and each of them is hereby authorized to issue a certificate or
certificates in substantially the form presented as aforesaid; and
FURTHER RESOLVED that all the powers and duties of Fleet Bank of Maine,
as Transfer Agent and Registrar for the shares of Preferred Stock of the
Company (the "Transfer Agent and Registrar") are hereby extended upon the
same terms and conditions to cover the transfer and registration of the 8.76%
Preferred Stock; and that the proper officers of the Company be, and each of
them hereby is, authorized and directed to give the Transfer Agent and
Registrar such instructions as may be appropriate to effect the issuance and
sale of the 8.76% Preferred Stock; and
FURTHER RESOLVED that the Chairman of the Board and Chief
Executive Officer, the President and Chief Operating Officer, the Treasurer,
or any Vice President of the Company or any of them be and each of them is
hereby authorized in the name of and on behalf of the Company to pay to the
Transfer Agent and Registrar all proper fees and charges arising out of or in
connection with the performance by it of its duties in connection with the
Shares, and to pay any and all expenses and fees arising in connection with
the issuance and sale of the 8.76% Preferred Stock; and
FURTHER RESOLVED that the appropriate officers of the Company and each
of them be and they hereby are authorized and directed to make, sign,
execute, verify, acknowledge and deliver, or cause to be made, signed,
executed, verified, acknowledged and delivered, any and all such orders,
certificates, directions, requests and other appropriate instruments and to
do all such acts and things as may be reasonably be required from time to
time hereafter to give effect to the foregoing votes, or any of them, or to
otherwise effect the issuance and sale of the 8.76% Preferred Stock.
For use by the
Secretary of State
STATE OF MAINE MAINE
File No. 19240001D ARTICLES OF AMENDMENT SECRETARY OF STATE
Fee Paid $11,250-$35 (Amendment by Share- FILED
C.B. ------- holders Voting as June 5, 1992
Date: 6-9-92 Separate Class) OF Agent
BANGOR HYDRO-
ELECTRIC COMPANY
a Quasi-Public Corporation
Pursuant to 13-A MRSA 805 and 807, the undersigned corporation adopts these
Articles of Amendment.
FIRST: As set out in detail in "THIRD", one or more classes of shares
of the corporation were entitled to vote on the following amendment as a
separate class.
SECOND: The amendment to the Articles of Incorporation of the
corporation set out in Exhibit A attached hereto was adopted by the
shareholders thereof at a meeting legally called and held on May 20, 1992.
THIRD: On said date, the number of shares of each class outstanding and
entitled to vote on such amendment (whether or not entitled to vote as a
separate class), the manner in which each such class was entitled to vote
(whether or not as a separate class), and the number of shares voted for and
against said amendment, respectively, were as follows:
Designation of Manner No. of Shares
Each Class In Which Outstanding
However Entitled Entitled And Entitled Voted Voted
to vote To Vote To Vote For Against
- - ----------------- --------- ------------- ------ --------
Common As a Class 5,370,684 3,110,728 545,539
$5 par value
Preferred As a Class 197,340* 173,031 374 Stock,
$100 par value ----------- --------- ---------
Total of All Classes 5,568,024 3,283,759 545,913
========= ========= =========
FOURTH: If such amendment provides for exchange, reclassification or
cancellation of issued shares the manner in which the same shall be effected
is contained in Exhibit B attached hereto, if it is not set forth in the
amendment itself.
*FIFTH: If such amendment effects a change in the number or par values
of authorized shares the number of shares which the
corporation has authority to issue after giving effect to such amendment is
as follows:
Series Number Par Value
Class (If any) of Shares (If any)
- - ----- -------- --------- ---------
Common N/A 7,500,000 $ 5
Preferred 400,000 100
The aggregate par value of all such shares (of all classes and series)
having par value is $77,500,000.
The total number of all such shares (of all classes and series) without
par value is -0- shares.
SIXTH: The address of the registered office of the corporation in the
State of Maine is 33 State Street, PO Box 932, Bangor, Maine 04401.
Dated: June 3, 1992
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Frederick S. Samp
signers Frederick S. Samp, Clerk
I certify that I have custody of the minutes showing the above action by the
shareholders.
\ss\ Frederick S. Samp
Frederick S. Samp, Clerk
NOTE: Shares may be entitled to vote as a separate class for any of the
reasons stated in 806, or if so provided in the Articles. For vote
necessary for adoption, see 805.
- - ------------------------------------
* To be completed only if Exhibit A or B do not give this required
information.
** The name of the corporation should be typed, and the document must be
signed by (1) Clerk or (2) by the President of a vice-president and by
the Secretary or an assistant secretary or such other officer as the
bylaws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of the Directors or by such
Directors as may be designated by majority of Directors then in office
or (4) if there are not such Directors, then by the holders, or such of
them as may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
of the outstanding shares of the corporation.
FORM NO. MBCA-9A
BANGOR HYDRO-ELECTRIC COMPANY
EXHIBIT A TO ARTICLES OF AMENDMENT DATED JUNE 3, 1992
RESOLVED that the Articles of Incorporation of the Company, as amended
to date, be further amended to increase the Company's authorized capital
stock by $15,000,000, such increase to be represented by 150,000 shares
of Preferred Stock of the par value of $100 each, so that the total
amount of authorized capital stock of the Company will be $77,500,000
represented by 400,000 shares of Preferred Stock of the par value of
$100 each and 7,500,000 shares of Common Stock of the par value of $5
each.
Filing Fee (See Sec. 1-01) This Space for Use By
For Use by The Secretary of State
Secretary of State
STATE OF MAINE
File No. _______ ARTICLES OF AMENDMENT
Fee Paid _______ (Amendment by Share-
C.B. _______ holders Voting as
Date: _______ Separate Class) OF
BANGOR HYDRO-
ELECTRIC COMPANY
a Quasi-Public Corporation
Pursuant to 13-A MRSA Section 805 and 807, the undersigned corporation adopts
these Articles of Amendment.
FIRST: As set out in detail in "THIRD", one or more classes of shares
of the corporation were entitled to vote on the following amendment as a
separate class.
SECOND: The amendment to the Articles of Incorporation of the
corporation set out in Exhibit A attached hereto was adopted by the
shareholders thereof at a meeting legally called and held on May 18 and June
16, 1994.
THIRD: On said date, the number of shares of each class outstanding and
entitled to vote on such amendment (whether or not entitled to vote as a
separate class), the manner in which each such class was entitled to vote
(whether or not as a separate class), and the number of shares voted for and
against said amendment, respectively, were as follows:
Designation of Manner No. of Shares
Each Class In Which Outstanding
However Entitled Entitled And Entitled Voted Voted
To Vote To Vote To Vote For Against
- - ----------------- --------- ------------- -------- --------
ON COMMON STOCK
Common Stock As a Class 6,245,174 4,459,161 474,723
$5 par value
Preferred stock
$100 par value As a Class 47,340 34,193 2,608
--------- --------- --------
Total of all 6,292,514 4,493,354 477,331
ON PREFERRED STOCK
Common Stock
$5 par value As a Class 6,245,174 3,409,615 651,515
Preferred Stock
$100 par value 197,340* 163,962 9,688
--------- --------- --------
Totals of All Classes 6,442,514 3,573,577 661,203
* Includes 150,000 shares with no general voting power.
FOURTH: If such amendment provides for exchange, reclassification or
cancellation of issued shares the manner in which the same shall be effected
is contained in Exhibit B attached hereto, if it is not set forth in the
amendment itself.
*FIFTH: If such amendment effects a change in the number or par values
of authorized shares the number of shares which the
corporation has authority to issue after giving effect to such amendment, is
as follows:
Series Number Par Value
Class (If any) of Shares (If any)
- - ----- -------- ---------- ---------
Common Stock
$5 par value N/A 10,000,000 $ 5
Preferred Stock As determined
$100 par value by Board of
Directors 600,000 $100
The aggregate par value of all such shares (of all classes and series)
having par value is $10,000,000.
The total number of all such shares (of all classes and series) without
par value is -0- shares.
SIXTH: The address of the registered office of the corporation in the
State of Maine is 33 State Street, PO Box 932, Bangor, Maine 04402-0932.
Dated: August 11, 1994
Legibly print or Bangor Hydro-Electric Company
type name and (name of corporation)
capacity of all By \ss\ Frederick S. Samp
signers Frederick S. Samp, Clerk
13-A MRSA Section 104. By __________________________
__________________________
I certify that I have custody of the minutes showing the above action by the
shareholders.
\ss\ Frederick S. Samp
NOTE: Shares may be entitled to vote as a separate class for any of the
reasons stated in Section 806, or if so provided in the Articles.
For vote necessary for adoption, see Section 805.
* To be completed only if Exhibit A or B do not give this required
information.
** The name of the corporation should be typed, and the document must be
signed by (1) Clerk or (2) by the President or a vice-president and by
the Secretary or an assistant secretary or such other officer as the
bylaws may designate as a second certifying officer or (3) if there are
no such officers, then by a majority of the directors or by such
directors as may be designated by majority of directors then in office
or (4) if there are no such directors, then by the holders, or such of
them as may be designated by the holders, of record of a majority of all
outstanding shares entitled to vote thereon or (5) by the holders of all
of the outstanding shares of the corporation.
FORM NO. MBCA-9A
BANGOR HYDRO-ELECTRIC COMPANY
EXHIBIT A TO ARTICLES OF AMENDMENT DATED JULY 1, 1994
RESOLVED that the Articles of Incorporation of the Company, as amended
to date, be further amended to increase the Company's authorized capital
stock by $32,500,000, such increase to be represented by 200,000 shares
of Preferred Stock of the par value of $100 each, and 2,500,000 shares
of common stock of the par value of $5 each, so that the total amount of
authorized capital stock of the Company will be $110,000,000 represented
by 600,000 shares of Preferred Stock of the par value of $100 each and
10,000,000 shares of Common Stock of the par value of $5 each.