EXHIBIT 3-A-1
Amended
Articles of Incorporation
of
THE CINCINNATI GAS & ELECTRIC COMPANY
Effective
January 24, 1994
AMENDED ARTICLES OF INCORPORATION
of
THE CINCINNATI GAS & ELECTRIC COMPANY
The Cincinnati Gas & Electric Company, a corporation for
profit, heretofore organized in the year 1837 and now existing
under the laws of the State of Ohio, adopts, makes and files
these Amended Articles of Incorporation to supersede and take the
place of its heretofore existing Articles of Incorporation and
all previously adopted Amendments thereto:
ARTICLE FIRST
The name of the corporation shall be The Cincinnati Gas &
Electric Company (hereinafter referred to as the "Company").
ARTICLE SECOND
The place in the State of Ohio where the principal office of
the Company is located is the City of Cincinnati and the County
of Hamilton.
ARTICLE THIRD
The purpose for which the Company is formed is to engage in
any lawful act or activity for which corporations may be formed
under Sections 1701.01 to 1701.98 of the Ohio Revised Code.
ARTICLE FOURTH
The maximum number of shares which the Company is authorized
to have outstanding is 126,000,000 shares of which 6,000,000
shares of the par value of $100 each and of the aggregate par
value of $600,000,000 are to be Cumulative Preferred Stock, and
120,000,000 shares of the par value of $8.50 each and of the
aggregate par value of $1,020,000,000 are to be Common Stock.
The Common Stock and Cumulative Preferred Stock shall have
the following respective designations, preferences, dividend
rights, voting powers, redemption rights, conversion rights,
restrictions on issuance of shares and other relative,
participating, optional or other special rights and preferences,
and qualifications, limitations or restrictions thereon, and are
created on the following terms, respectively:
COMMON STOCK
The shares of Common Stock may be issued at any time or
from time to time for such amount of consideration as may be
fixed by the Board of Directors. The holders of Common Stock
shall not be entitled to subscribe for or purchase or receive
any part of any new or additional issue of, or any warrant,
option or other right for the purchase of, stock of any class
or securities convertible into stock of any class whether now
or hereafter authorized and whether issued for cash,
property, by way of dividends or otherwise, except as
authorized by the Board of Directors.
CUMULATIVE PREFERRED STOCK
Clause l. Except as otherwise provided by this Article
Fourth or by the resolution or resolutions of the Board of
Directors providing for the issue of any series of Cumulative
Preferred Stock, the Cumulative Preferred Stock may be issued
at any time or from time to time in any amount, not exceeding
in the aggregate, including all shares of any and all series
thereof theretofore issued, the total number of shares of
Cumulative Preferred Stock hereinabove authorized, as
Cumulative Preferred Stock of one or more series, as
hereinafter provided, and for such lawful consideration as
shall be fixed from time to time by the Board of Directors.
All shares of any one series of Cumulative Preferred Stock
shall be alike in every particular, each series thereof shall
be distinctively designated by letter or descriptive words,
and all series of Cumulative Preferred Stock shall rank
equally and be identical in all respects except as permitted
by the provisions of Clause 2 of this Article Fourth.
Clause 2. Authority is hereby expressly granted to the
Board of Directors from time to time to adopt amendments to
these Articles providing for the issue in one or more series
of any unissued or treasury shares of the Cumulative
Preferred Stock, and to fix, by the amendment creating each
such series of the Cumulative Preferred Stock, the
designation and number of shares, dividend rate, dividend
payments dates (for any series issued subsequent to April 22,
1981), redemption rights and price, sinking fund
requirements, conversion rights and restrictions on issuance
of shares, of such series, to the full extent now or
hereafter permitted by the laws of the State of Ohio and
notwithstanding the provisions of any other Article of these
Amended Articles of the Company, in respect of the matters
set forth in the following subdivisions (a) to (g),
inclusive:
(a) The designation and number of shares of such
series;
(b) The dividend rate of such series;
(c) The dividend payment dates of such series (for
any series issued subsequent to April 22, 1981);
(d) The price or prices at which shares of such
series may be redeemed, provided that such price shall
not be less than $100 a share and not more than $115 a
share, plus an amount equal to all accrued dividends
thereon to the date fixed for redemption;
(e) The amount of the sinking fund, if any, to be
applied to the purchase or redemption of shares of such
series and the manner of its application;
(f) Whether or not the shares of such series shall
be made convertible into, or exchangeable for, shares of
any other class or classes or of any other series of the
same class of stock of the Company, and if made so
convertible or exchangeable, the conversion price or
prices, or the rates of exchange, and the adjustments, if
any, at which such conversion or exchange may be made;
and
(g) Whether or not the issue of any additional
shares of such series or any future series in addition to
such series shall be subject to any restrictions and, if
so, the nature of such restrictions.
Clause 3. Before any dividends shall be declared or
paid upon or set apart for, or distribution made on, the
Common Stock and before any sum shall be paid or set apart
for the purchase or redemption of Cumulative Preferred Stock
of any series or for the purchase of the Common Stock, the
holders of Cumulative Preferred Stock of each series shall be
entitled to receive, if and when declared by the Board of
Directors, dividends at the annual rate fixed for such series
in accordance with the provisions of this Article Fourth, and
no more, from October 1, 1945, or if the first issue of any
shares of a series is made subsequent to December 31, 1945
but prior to April 23, 1981, from the dividend payment date
of, or next preceding the date of, issue thereof, payable on
January 1, April 1, July 1 and October 1 of each year;
provided, however, if the first issue of any shares of a
series is made subsequent to April 22, 1981, from the
dividend payment date of, or next preceding the date of,
issue thereof, payable on quarterly payment dates as fixed by
the Board of Directors. Dividends shall be cumulative so
that if for any dividend period or periods dividends on the
outstanding Cumulative Preferred Stock of any series, at the
rates fixed for such series, shall not have been paid, such
dividends shall be paid, or declared and set apart for
payment, before any dividends shall be declared or paid upon
or set apart for, or any distribution made on, the Common
Stock and before any sum shall be paid or set apart for the
purchase or redemption of Cumulative Preferred Stock of any
series or for the purchase of Common Stock. Deferred
dividends shall not bear interest. Dividends on all
Cumulative Preferred Stock of the same series shall be
cumulative from the same date and in the event of the issue
of additional Cumulative Preferred Stock of any series all
dividends paid on Cumulative Preferred Stock of such series
on the date of or on a date prior to the issue of such
additional Cumulative Preferred Stock and all dividends
declared and payable to holders of record of Cumulative
Preferred Stock of such series on a date prior to such
additional issue shall be deemed to have been paid on the
additional stock so issued. If at any time Cumulative
Preferred Stock of more than one series shall be outstanding,
any dividends declared upon the Cumulative Preferred Stock in
an amount less than the full amount payable on all Cumulative
Preferred Stock outstanding shall be declared pro rata so
that the amounts of dividends declared on each share of the
Cumulative Preferred Stock of different series shall in all
cases bear to each other the same proportions that the
respective dividend rates of such respective series bear to
each other.
Clause 4. Upon at least thirty days previous notice
given by mail to record holders of Cumulative Preferred Stock
to be redeemed at their respective addresses as they appear
on the books of the Company and by publication in a newspaper
of general circulation in the City of Cincinnati, Ohio, and
in a newspaper of general circulation in the Borough of
Manhattan, City and State of New York, the Company, at its
election, by action of its Board of Directors may redeem the
whole of the Cumulative Preferred Stock or any series thereof
or any part of any series thereof by lot or pro rata, at any
time or from time to time and at the prices fixed for the
redemption of such shares in accordance with the provisions
of this Article Fourth (the price so fixed for any series
being herein called the redemption price of such series). If
the Company shall determine to redeem by lot less than all
the shares of any series of Cumulative Preferred Stock, the
selection by lot of the shares of such series so to be
redeemed shall be conducted by an independent bank or trust
company. From and after the date fixed in such notice as the
date of redemption, unless default shall be made by the
Company in providing moneys at the time and place specified
for the payment of the redemption price pursuant to such
notice, or, if the Company shall so elect, from and after a
date, which shall be prior to the date fixed as the date of
redemption, on which the Company shall provide moneys for the
payment of the redemption price by depositing the amount
thereof in trust for the account of the holders of the
Cumulative Preferred Stock called for redemption with a bank
or trust company doing business in the Borough of Manhattan,
in the City and State of New York, or in the City of
Cincinnati, Ohio, and having capital and surplus of at least
$5,000,000, pursuant to notice of such election included in
the notice of redemption specifying the date on which such
deposit will be made, all dividends on the Cumulative
Preferred Stock called for redemption shall cease to accrue
and all rights of the holders thereof as shareholders of the
Company, except the right to receive the redemption price
upon presentation and surrender of the respective
certificates for the Cumulative Preferred Stock called for
redemption, shall cease and determine. The Company may, from
time to time, purchase the whole of the Cumulative Preferred
Stock or any series thereof, or any part of any series
thereof, upon the best terms reasonably obtainable, but in no
event at a price greater than the redemption price in effect
at the date of such purchase of the shares so purchased. Such
redemption or purchase may, however, be effected only if full
cumulative dividends upon all shares of the Cumulative
Preferred Stock of all series then outstanding and not then
to be redeemed or purchased shall have been declared and
payment provided for. Cumulative Preferred Stock of any
series redeemed or purchased may in the discretion of the
Board of Directors be reissued, at any time or from time to
time, as stock of the same or of a different series, or may
be cancelled and not reissued.
Clause 5. After full cumulative dividends as aforesaid
upon the Cumulative Preferred Stock of all series then
outstanding shall have been paid for all past dividend
periods, and after or concurrently with making payment of or
provision for full dividends on the Cumulative Preferred
Stock of all series then outstanding for the current dividend
period, then and not otherwise dividends may be declared upon
the Common Stock at such rate as the Board of Directors may
determine and no holders of shares of any series of the
Cumulative Preferred Stock, as such, shall be entitled to
share therein.
Clause 6-A. So long as any shares of the Cumulative
Preferred Stock of any series shall be outstanding, the
Company shall not, without the consent in writing of the
holders of record of at least a majority of the total number
of shares of the Cumulative Preferred Stock of all series
then outstanding or the consent (given by vote at a meeting
called for that purpose in the manner prescribed by the Code
of Regulations of the Company) of the holders of record of at
least a majority of the total number of shares of the
Cumulative Preferred Stock of all series then outstanding:
(a) Increase the authorized number of shares
of the Cumulative Preferred Stock; or
(b) Issue any unsecured notes, debentures or
other securities representing unsecured indebtedness,
or assume any such unsecured securities, for purposes
other than the refunding of outstanding unsecured
indebtedness theretofore incurred or assumed by the
Company or the redemption or other retirement of
outstanding shares of stock ranking prior to the
Cumulative Preferred Stock with respect to the
payment of dividends or upon the dissolution,
liquidation or winding up of the Company, whether
voluntary or involuntary, if, immediately after such
issue or assumption, the total principal amount of
all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed
by the Company and then outstanding (including
unsecured securities then to be issued or assumed)
would exceed 20% of the aggregate of (i) the total
principal amount of all bonds and other securities
representing secured indebtedness issued or assumed
by the Company and then to be outstanding, and (ii)
the capital and surplus of the Company as then to be
stated on the books of account of the Company; or
(c) Consolidate or merge with or into any
other corporation or corporations, unless such
consolidation or merger, or the issuance or
assumption of all securities to be issued or assumed
in connection with such consolidation or merger,
shall have been ordered, approved or permitted by the
Securities and Exchange Commission or by any
successor commission or other regulatory authority of
the United States of America having jurisdiction over
such consolidation or merger or the issuance or
assumption of securities in connection therewith;
provided that the provisions of this subdivision (c)
shall not apply to (i) a consolidation of the Company
with, or a merger into the Company of, any subsidiary
all the outstanding shares of stock of which at the
time shall be owned by the Company, or (ii) the
purchase or other acquisition by the Company of the
franchises or assets of another corporation, or (iii)
any transaction which does not involve a
consolidation or merger under the laws of the State
of Ohio.
Clause 6-B. So long as any shares of the Cumulative
Preferred Stock of any series shall be outstanding, the
Company shall not, without the consent in writing of the
holders of record of at least two-thirds of the total number
of shares of the Cumulative Preferred Stock of all series
then outstanding or the consent (given by vote at a meeting
called for that purpose in the manner prescribed by the Code
of Regulations of the Company) of the
holders of record of at least two-thirds of the total number
of shares of the Cumulative Preferred Stock of all series then
outstanding:
(a) Create or authorize any kind of stock
ranking prior to the Cumulative Preferred Stock with
respect to the payment of dividends or upon the
dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, or create
or authorize any obligation or security convertible
into shares of any such kind of stock; or
(b) Amend, alter, change or repeal any of the
express terms of the Cumulative Preferred Stock so as
to affect the holders thereof adversely; or
(c) Sell all or substantially all its assets,
or sell all or substantially all its electric
properties; or
(d) Issue any additional shares of any series
of the Cumulative Preferred Stock, other than a
maximum of 270,000 shares of the first series, or any
shares ranking on a parity with it, unless the
consolidated income of the Company and its
subsidiaries (determined as hereinafter provided) for
any twelve consecutive calendar months within the
fifteen calendar months immediately preceding the
month within which the issuance of such additional
shares shall be authorized by the Board of Directors
of the Company shall have been in the aggregate not
less than one and one-half times the sum, on a
consolidated basis, of the interest requirements
(adjusted by provision for amortization of debt
discount and expense or of premium on debt, as the
case may be) for one year on all the indebtedness of
the Company and its subsidiaries outstanding at the
date of such proposed issue and the full dividend
requirements for one year on all shares of preferred
stock of the subsidiaries of the Company outstanding
at the date of such proposed issue and the full
dividend requirements for one year on all outstanding
shares (including those then proposed to be issued
but excluding any shares proposed to be retired in
connection with such issue) of the Cumulative
Preferred Stock and all other stock, if any, ranking
prior to or on a parity with the Cumulative Preferred
Stock with respect to the payment of dividends or the
distribution of assets upon the dissolution,
liquidation or winding up of the Company, whether
voluntary or involuntary.
"Consolidated income" for any period for the
purposes of this subdivision (d) of Clause 6-B shall
be computed by adding to the consolidated net income
of the Company and its subsidiaries for said period,
determined in accordance with generally accepted
accounting principles and practices, as adjusted by
action of the Board of Directors of the Company as
hereinafter provided, the amount deducted for
interest (adjusted as above provided) in determining
such net income. In determining such consolidated net
income for any period, there shall be deducted, in
addition to other items of expense, the amount
charged to income for said period on the books of the
Company and its subsidiaries for taxes and
depreciation expense. In the determination of
consolidated net income for the purposes of this
subdivision (d), the Board of Directors of the
Company
may, in the exercise of due discretion, make
adjustments by way of increase or decrease in such
consolidated net income to give effect to changes
therein resulting from any acquisition of properties
or to any redemption, acquisition, purchase, sale or
exchange of securities by the Company or its
subsidiaries either prior to the issuance of any
shares of Cumulative Preferred Stock then to be
issued or in connection therewith.
The term "subsidiary" as used in this
subdivision (d) of Clause 6-B shall mean any
corporation more than 50% of the voting stock (stock
at the time entitling the holders thereof to elect a
majority of the Board of Directors of such
corporation) of which at the time is owned or
controlled, directly or indirectly, by the Company or
by one or more subsidiaries of the Company, or by the
Company and by one or more subsidiaries of the
Company.
The term "preferred stock" of a subsidiary as
used in this subdivision (d) of Clause 6-B shall mean
any stock of such subsidiary entitled to a preference
as to dividends or as to assets upon any liquidation
or dissolution of such subsidiary over any other
stock of such subsidiary.
Clause 6-C. So long as any shares of the Cumulative
Preferred Stock of any series shall be outstanding, the
Company shall not, without the consent in writing of the
holders of record of at least two-thirds of the total number
of shares of all series of the Cumulative Preferred Stock
which may be affected adversely or the consent (given by vote
at a meeting called for that purpose in the manner prescribed
by the Code of Regulations of the Company) of the holders of
record of at least two-thirds of the total number of shares
of all series of the Cumulative Preferred Stock which may be
affected adversely, amend, alter, change or repeal any of the
express terms of one or more series of the Cumulative
Preferred Stock so as to affect such series adversely.
Clause 7. Except as and to the extent otherwise
provided in this Article Fourth, the Cumulative Preferred
Stock shall not entitle any holder thereof to vote at any
meeting of shareholders or election of the Company, or
otherwise to participate in any action taken by the Company
or the shareholders thereof; provided, however, that whenever
dividends payable on the Cumulative Preferred Stock shall be
in default in an aggregate amount equivalent to four full
quarterly dividends on all shares of such Cumulative
Preferred Stock then outstanding, and until all such
dividends then in default shall have been paid or declared
and set apart for payment, the holders of the Cumulative
Preferred Stock of all series, voting separately as a class
and regardless of series, shall be entitled to elect a
majority of the Board of Directors, as then constituted, of
the Company, and the holders of any other class or classes of
stock of the Company entitled to vote for the election of
directors shall be entitled, voting separately as a class, to
elect the remainder of the Board of Directors, as then
constituted, of the Company. The right of the holders of the
Cumulative Preferred Stock voting separately as a class to
elect members of the Board of Directors of the Company as
aforesaid shall continue until such time as all dividends
accumulated on the Cumulative Preferred Stock shall have been
paid in full, or declared and set apart for payment (and such
dividends shall be paid, or declared and set apart for
payment, out of assets available therefor as soon as is
reasonably practicable), at which time
the right of the holders of the Cumulative Preferred Stock
voting separately as a class to elect members of the Board of
Directors as aforesaid and the right of the holders or any
other class or classes of stock of the Company entitled to
vote for the election of directors voting separately as a
class to elect the remainder of the Board of Directors as
aforesaid shall terminate, subject to revesting in the event
of each and every subsequent default of the character above
mentioned.
The aforesaid rights of the holders of the Cumulative
Preferred Stock and of any other class or classes of stock of
the Company to vote separately for the election of members of
the Board of Directors may be exercised at any annual meeting
of shareholders of the Company or, within the limitations
hereinafter provided, at a special meeting of shareholders of
the Company held for the purpose of electing directors.
At such time when the right of the holders of the
Cumulative Preferred Stock to elect a majority of the Board
of Directors shall have become vested as aforesaid, a special
meeting of shareholders of the Company may be called and held
for the purpose of electing directors in the following manner
(unless under the provisions of the Code of Regulations of
the Company, as then in effect, an annual meeting of
shareholders of the Company is to be held within 60 days
after the vesting in the holders of the Cumulative Preferred
Stock of the right to elect members of the Board of Directors
or unless, subsequent to such vesting, a meeting of
shareholders of the Company has been held at which holders of
the Cumulative Preferred Stock were entitled to elect members
of the Board of Directors).
Upon the written request of any holder of record of the
Cumulative Preferred Stock then outstanding, regardless of
series, addressed to the Secretary of the Company, the
Secretary or an Assistant Secretary of the Company shall call
a special meeting of the shareholders entitled to vote for
the election of directors, for the purpose of electing a
majority of the Board of Directors by the vote of the holders
of the Cumulative Preferred Stock, and the remainder of the
Board of Directors by the vote of the holders of such other
class or classes of stock as may then be entitled to vote for
the election of directors, voting separately as hereinbefore
provided. Such meeting shall be held within 50 days after
personal service of such written request upon the Secretary
of the Company, or within 50 days after mailing the same
within the United States of America by registered mail
addressed to the Secretary of the Company at its principal
office. If such meeting shall not be called within 20 days of
such personal service or mailing, then any holder of record
of the Cumulative Preferred Stock then outstanding,
regardless of series, may designate in writing himself or any
other holder of record of the Cumulative Preferred Stock to
call such special meeting at the expense of the Company, and
such meeting may be called by such person so designated upon
the notice required for special meetings of shareholders and
shall be held at the place for the holding of annual meetings
of shareholders of the Company. Any holder of the Cumulative
Preferred Stock so designated shall have access to the stock
books of the Company for the purpose of causing said meeting
to be called as aforesaid.
At any annual or special meeting held for the purpose of
electing directors when the holders of the Cumulative
Preferred Stock shall be entitled to elect members of the
Board of Directors as aforesaid, the presence in person or by
proxy of the holders of a majority of the total number of
outstanding shares of the class or classes of stock of the
Company
other than the Cumulative Preferred Stock entitled to
elect directors as aforesaid shall be required to constitute
a quorum of such class or classes for the election of
directors by such class or classes, and the presence in
person or by proxy of the holders of a majority of the total
number of outstanding shares of the Cumulative Preferred
Stock shall be required to constitute a quorum of such class
for the election of directors by such class; provided,
however, that a majority of those holders of the stock of
either such class or classes who are present in person or by
proxy shall have power to adjourn such meeting for the
election of directors by such class from time to time without
notice other than announcement at the meeting.
Upon the election of a majority of the Board of Directors
by the holders of the Cumulative Preferred Stock, the term of
office of all directors then in office shall terminate; and
no delay or failure by the holders of other classes of stock
in electing the remainder of the Board of Directors shall
invalidate the election of a majority thereof by the holders
of the Cumulative Preferred Stock.
Upon any termination of the right of the holders of the
Cumulative Preferred Stock to elect members of the Board of
Directors as aforesaid, the term of office of the directors
then in office shall terminate upon the election of a
majority of the Board of Directors, as then constituted, at a
meeting of the holders of the class or classes of stock of
the Company then entitled to vote for directors, which
meeting may be held at any time after such termination of
such right, and shall be called upon the request of holders
of record of such class or classes of stock then entitled to
vote for directors, in like manner and subject to similar
conditions as hereinbefore in this Clause 7 provided with
respect to the call of a special meeting of shareholders for
the election of directors by the holders of the Cumulative
Preferred Stock.
In case of any vacancy in the office of a director
occurring among the directors elected by the holders of the
Cumulative Preferred Stock as aforesaid, or of a successor to
any such director, the remaining directors so elected may
elect, by affirmative vote of a majority thereof, or the
remaining director so elected if there be but one, a
successor or successors to hold office for the unexpired term
of the director or directors whose place or places shall be
vacant, and such successor or successors shall be deemed to
have been elected by the holders of the Cumulative Preferred
Stock as aforesaid. Likewise, in case of any vacancy in the
office of a director occurring (at a time when the holders of
the Cumulative Preferred Stock shall be entitled to elect
members of the Board of Directors as aforesaid) among the
directors elected by the holders of the class or classes of
stock of the Company other than the Cumulative Preferred
Stock, or of a successor to any such director, the remaining
directors so elected may elect, by affirmative vote of a
majority thereof, or the remaining director so elected if
there be but one, a successor or successors to hold office
for the unexpired term of the director or directors whose
place or places shall be vacant, and such successor or
successors shall be deemed to have been elected by such
holders of the class or classes of stock of the Company other
than the Cumulative Preferred Stock.
Except as herein otherwise expressly provided and except
when some mandatory provision of law shall be controlling,
whenever shares of two or more series of the Cumulative
Preferred Stock shall be outstanding, no particular series of
the Cumulative Preferred Stock shall be entitled to vote as a
separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of
the shareholders of the Company by classes may now or
hereafter be required.
Clause 8. Upon any dissolution, liquidation, winding up
or reduction of the capital stock of the Company resulting in
a distribution of assets to its shareholders, holders of
Cumulative Preferred Stock of each series then outstanding,
before any distribution of assets shall be made to the
holders of Common Stock, shall be entitled to receive (a) in
the event of any involuntary dissolution, liquidation or
winding up of the Company, $100 a share together with an
amount equal to all accrued dividends thereon, and (b) in the
event of any voluntary dissolution, liquidation or winding up
of the Company or in the event of a reduction of the capital
stock of the Company resulting in a distribution of assets to
its shareholders, an amount equal to the redemption price
then in effect of the Cumulative Preferred Stock of such
series. If upon any such dissolution, liquidation or winding
up of the Company or reduction of its capital stock, the
assets so to be distributed among the holders of the
Cumulative Preferred Stock shall be insufficient to permit
the payment to such holders of the full preferential amounts
aforesaid, then the entire assets of the Company shall be
distributed ratably among the holders of the Cumulative
Preferred Stock in proportion to the full preferential
amounts to which they are respectively entitled as aforesaid.
After payment to the holders of the Cumulative Preferred
Stock of the full preferential amounts hereinbefore provided
for, the holders of the Cumulative Preferred Stock, as such,
shall have no right or claim to any of the remaining assets
of the Company and the remaining assets to be distributed, if
any, shall be distributed to the holders of the Common Stock.
Clause 9. The holders of the Cumulative Preferred Stock
shall have no right whatever to subscribe for or purchase or
receive any part of any new or additional issue of stock of
any class or securities convertible into stock of any class
whether now or hereafter authorized and whether issued for
cash, property or by way of dividends.
Clause 10. The term "accrued dividends", whenever used
herein with respect to the Cumulative Preferred Stock of any
series shall be deemed to mean that amount which would have
been paid as dividends on the Cumulative Preferred Stock of
such series to date had full dividends been paid thereon at
the rate fixed for such series in accordance with the
provisions of this Article Fourth, less in each case the
amount of all dividends paid upon the shares of such series
and the dividends deemed to have been paid as provided in
Clause 3 hereof.
Clause 11. So long as any shares of the first series of
Cumulative Preferred Stock shall be outstanding, the Company
shall not, at any time after December 31, 1949, declare any
dividend on any of its Common Stock, except dividends payable
in shares of Common Stock of the Company, or purchase any
shares of its Common Stock, or make any distribution of cash
or property among its Common Stockholders, by the reduction
of its
capital stock or otherwise, unless, after giving
effect to such dividend, purchase or distribution, the
aggregate of all such dividends and all amounts applied to
such purchases or so distributed subsequent to December 31,
1949, shall not exceed 75% of the net income of the Company
subsequent to December 31, 1949, if, at the time of the
declaration of such dividend or the making of such purchase
or distribution, the aggregate of the par value of, or stated
capital represented by, the outstanding shares of Common
Stock of the Company and of the surplus of the Company shall
be less than an amount equal to 25% of the total
capitalization and surplus of the Company.
For the purposes of this Clause 11, the following terms
shall have the following meanings:
(a) The term "net income of the Company"
shall mean the gross earnings of the Company from all
sources less all proper deductions for operating
expenses, taxes (including income, excess profits and
other taxes based on or measured by income or
undistributed earnings or income), interest charges
and other appropriate items, including provision for
maintenance, retirements, depreciation and
obsolescence in an amount not less than 15% of the
amount of the operating revenues of the Company, and
less all dividends paid or accrued on the Cumulative
Preferred Stock of the Company which are applicable
to the period subsequent to December 31, 1949, and
otherwise determined in accordance with sound
accounting practice. The term "operating revenues of
the Company", as used in this paragraph, shall mean
and include all operating revenues derived by the
Company from the operation of its plants and
properties remaining after deducting therefrom an
amount equal to the aggregate cost to the Company of
electricity, gas (natural, artificial or mixed),
steam or water purchased and rentals paid for the use
of property owned by others and leased to or operated
by the Company and the maintenance of which and
depreciation on which are borne by the owners.
(b) The term "total capitalization" shall
mean the aggregate of the principal amount of all
indebtedness of the Company outstanding in the hands
of the public maturing more than twelve months after
the date of issue or assumption thereof, plus the par
value of, or stated capital represented by, the
outstanding shares of all classes of stock of the
Company.
(c) The term "surplus of the Company" shall
include capital surplus, earned surplus and any other
surplus of the Company.
VARIABLE TERMS OF EXISTING SERIES
OF CUMULATIVE PREFERRED STOCK
Clause 12. There has been previously created and issued
by resolution of the Board of Directors adopted October 25,
1945, an outstanding first series of the Cumulative Preferred
Stock authorized by this Article Fourth, consisting of
270,000 shares designated "Cumulative Preferred Stock, 4%
Series", the shares of such series having the express terms
and provisions stated in such Article Fourth and as provided
in paragraphs (a) to (f), inclusive, of such resolution, to
wit:
(a) The designation of such series shall be
"Cumulative Preferred Stock, 4% Series", and such
series shall consist of 270,000 shares;
(b) The dividend rate of such series shall be
4% a share per year;
(c) The prices at which the shares of such
series may be redeemed shall be $111 a share if the
date fixed for redemption is prior to October 1,
1950; $109.50 a share if the date fixed for
redemption is October 1, 1950, or thereafter and
prior to October 1, 1955; and $108 a share if the
date fixed for redemption is on or after October 1,
1955; in each case plus an amount equal to all
dividends accrued thereon to the date fixed for
redemption;
(d) The shares of such series shall not be
entitled to the benefit of any sinking fund to be
applied to the purchase or redemption of shares of
such series;
(e) The shares of such series shall not be
convertible into or exchangeable for shares of any
other class or classes or of any other series of the
same or any other class or classes of stock of the
Company; and
(f) The issue of any additional shares of
such series or any future series shall not, by reason
of this Clause 12 of Article Fourth, be subject to
any restrictions in addition to the restrictions set
forth in the Articles of the Company.
Clause 13. There has been previously created and issued
by resolution of the Board of Directors adopted March 10,
1958, an outstanding second series of the Cumulative
Preferred Stock authorized by this Article Fourth, consisting
of 130,000 shares designated "Cumulative Preferred Stock, 4
3/4% Series", the shares of such series having the express
terms and provisions stated in such Article Fourth and as
provided in paragraphs (a) to (f), inclusive, of such
resolution, to wit:
(a) The designation of such series shall be
"Cumulative Preferred Stock, 4 3/4% Series", and such
series shall consist of 130,000 shares;
(b) The dividend rate of such series shall be
4 3/4% a share per year;
(c) The prices at which the shares of such
series may be redeemed shall be $106 a share if the
date fixed for redemption is prior to April 1, 1963;
$104 a share if the date fixed for redemption is
April 1, 1963, or thereafter and prior to April 1,
1968; $102 a share if the date fixed for redemption
is April 1, 1968, or thereafter and prior to April 1,
1973; and $101 a share if the date fixed for
redemption is on or after April 1, 1973; in each case
plus an amount equal to all dividends accrued thereon
to the date fixed for redemption; provided,
however, the Company shall not on or prior to April 1,
1963 exercise its option to redeem any shares of the
Cumulative Preferred Stock, 4 3/4% Series, as a part
of or in anticipation of any refunding operation by
the application, directly or indirectly, of borrowed
funds or the proceeds of issue of any stock ranking
prior to or on a parity with the Cumulative Preferred
Stock if such borrowed funds have an interest rate or
interest cost (calculated in accordance with accepted
financial practice), or such shares have a dividend
rate or cost, to the Company so calculated, less than
the dividend rate per annum of the Cumulative
Preferred Stock, 4 3/4% Series;
(d) The shares of such series shall not be
entitled to the benefit of any sinking fund to be
applied to the purchase or redemption of shares of
such series;
(e) The shares of such series shall not be
convertible into or exchangeable for shares of any
other class or classes or of any other series of the
same class of stock of the Company; and
(f) The issue of any additional shares of
such series or any future series shall not, by reason
of this Clause l3 of Article Fourth, be subject to
any restrictions in addition to the restrictions set
forth in the Articles of the Company.
Clause 14. There has been previously created and issued
by resolution of the Board of Directors adopted April 10,
1972, an outstanding third series of the Cumulative Preferred
Stock authorized by this Article Fourth, consisting of
400,000 shares designated "Cumulative Preferred Stock, 7.44%
Series", the shares of such series having the express terms
and provisions stated in such Article Fourth and as provided
in paragraphs (a) to (f), inclusive, of such resolution, to
wit:
(a) The designation of such series shall be
"Cumulative Preferred Stock, 7.44% Series", and such
series shall consist of 400,000 shares;
(b) The dividend rate of such series shall be
7.44% a share per year;
(c) The prices at which the shares of such
series may be redeemed shall be $107.50 a share if
the date fixed for redemption is prior to April 1,
1977; $105.00 a share if the date fixed for
redemption is April 1, 1977, or thereafter and prior
to April 1, 1982; $102.50 a share if the date fixed
for redemption is April 1, 1982, or thereafter and
prior to April 1, 1987; and $101.00 a share if the
date fixed for redemption is on or after April 1,
1987; in each case plus an amount equal to all
dividends accrued thereon to the date fixed for
redemption; provided, however, the Company shall not,
prior to April 1, 1977, exercise its option to redeem
any shares of the Cumulative Preferred Stock, 7.44%
Series, as a part of or in anticipation of any
refunding operation by the application, directly or
indirectly, of borrowed funds or the proceeds of
issue of any Cumulative Preferred Stock or any stock
ranking prior to or on a parity with the
Cumulative Preferred Stock if such borrowed funds have
an effective interest cost, or such shares have a
dividend cost, to the Company which is less than the
annual dividend rate of the Cumulative Preferred
Stock, 7.44% Series (in each case calculated to the
second place in accordance with generally accepted
financial practice);
(d) The shares of such series shall not be
entitled to the benefit of any sinking fund to be
applied to the purchase or redemption of shares of
such series;
(e) The shares of such series shall not be
convertible into or exchangeable for shares of any
other class or classes or of any other series of the
same class of stock of the Company; and
(f) The issue of any additional shares of
such series or any future series shall not, by reason
of this Clause 14 of Article Fourth, be subject to
any restrictions in addition to the restrictions set
forth in the Articles of the Company.
Clause 15. There has been previously created and issued
by resolution of the Board of Directors adopted June 17,
1974, an outstanding fourth series of the Cumulative
Preferred Stock authorized by this Article Fourth, consisting
of 400,000 shares designated "Cumulative Preferred Stock,
9.28% Series", the shares of such series having the express
terms and provisions stated in such Article Fourth and as
provided in paragraphs (a) to (f), inclusive, of such
resolution, to wit:
(a) The designation of such series shall be
"Cumulative Preferred Stock, 9.28% Series", and such
series shall consist of 400,000 shares;
(b) The dividend rate of such series shall be
9.28% a share per year;
(c) The prices at which the shares of such
series may be redeemed shall be $109.50 a share if
the date fixed for redemption is prior to July 1,
1979; $106.00 a share if the date fixed for
redemption is July 1, 1979, or thereafter and prior
to July 1, 1984; $103.00 a share if the date fixed or
redemption is July 1, 1984, or thereafter and prior
to July 1, 1989; and $101.00 a share if the date
fixed for redemption is on or after July 1, 1989; in
each case plus an amount equal to all dividends
accrued thereon to the date fixed for redemption;
provided, however, that the Company shall not, prior
to July 1, 1979, exercise its option to redeem any
shares of the Cumulative Preferred Stock, 9.28%
Series, as a part of or in anticipation of any
refunding operation by the application, directly or
indirectly, of borrowed funds or the proceeds of
issue of any Cumulative Preferred Stock or any stock
ranking prior to or on a parity with the Cumulative
Preferred Stock if such borrowed funds have an
effective interest cost, or such shares have a
dividend cost, to the Company which is less than the
annual dividend rate of the Cumulative Preferred
Stock, 9.28% Series (in each
case calculated to the second place in accordance with
generally accepted financial practice);
(d) The shares of such series shall not be
entitled to the benefit of any sinking fund to be
applied to the purchase or redemption of shares of
such series;
(e) The shares of such series shall not be
convertible into or exchangeable for shares of any
other class or classes or of any other series of the
same class of stock of the Company; and
(f) The issue of any additional shares of
such series or any future series shall not, by reason
of this Clause 15 of Article Fourth, be subject to
any restrictions in addition to the restrictions set
forth in the Articles of the Company.
Clause 16. There has been previously created and issued
by resolution of the Finance Committee of the Board of
Directors of the Company, being theretofore duly authorized
by the Board of Directors, adopted July 12, 1990, an
outstanding fifth series of the Cumulative Preferred Stock
authorized by this Article Fourth, consisting of 500,000
shares designated "Cumulative Preferred Stock, 9.15% Series",
the shares of such series having the express terms and
provisions stated in such Article Fourth and as provided in
paragraphs (a) to (f), inclusive, of such resolution, to wit:
(a) The designation of such series shall be
"Cumulative Preferred Stock, 9.15% Series", and such
series shall consist of 500,000 shares;
(b) The dividend rate of such series shall be
9.15% a share per year;
(c) The prices at which the shares of such
series may be redeemed are set forth below:
Twelve Months Redemption Twelve Months Redemption
Beginning Price Per Beginning Price Per
July 1 Share July 1 Share
------------- ---------- ------------- ----------
1990 . . . . $109.15 1998 . . . $104.27
1991 . . . . 108.54 1999 . . . 103.66
1992 . . . . 107.93 2000 . . . 103.05
1993 . . . . 107.32 2001 . . . 102.44
1994 . . . . 106.71 2002 . . . 101.83
1995 . . . . 106.10 2003 . . . 101.22
1996 . . . . 105.49 2004 . . . 100.61
1997 . . . . 104.88
and $100.00 a share if the date fixed for redemption
is on or after July 1, 2005, in each case plus an
amount equal to all dividends accrued thereon to the
date fixed for redemption; provided, however, that
the Company shall not, prior to July 1, 1995,
exercise its option to redeem any shares of the
Cumulative Preferred Stock, 9.15% Series, as a part
of or in anticipation of any refunding operation by
the application, directly or indirectly, of borrowed
funds or the proceeds of issue of any Cumulative
Preferred Stock or any stock ranking prior to or on a
parity with the Cumulative Preferred Stock if such
borrowed funds have an effective interest cost, or
such shares have a dividend cost, to the Company
which is less than the annual dividend rate of the
Cumulative Preferred Stock, 9.15% Series (in each
case calculated to the second place in accordance
with generally accepted financial practice);
(d) Beginning July 1, 1996 and on each July 1
thereafter, as long as any shares of the series shall
be outstanding, the Company shall acquire by
redemption, as a mandatory sinking fund requirement
and out of any funds legally available therefor,
25,000 shares of the series or, if less than 25,000
shares are then outstanding, such lesser number of
shares, at a redemption price of $100 a share, plus
an amount equal to all accrued dividends thereon to
the date fixed for redemption. The Company may
redeem, at its option, on July 1 of each such year,
not more than 25,000 additional shares at the same
price. Such optional right of redemption will not be
cumulative and will not reduce the mandatory sinking
fund requirement in any subsequent year. The sinking
fund requirement may be satisfied in whole or in part
by crediting shares of the series acquired by the
Company. To the extent the Company does not satisfy
the mandatory sinking fund obligation in any year
such obligation must be satisfied in the succeeding
year or years. If the Company is in arrears in the
redemption of the shares of the series pursuant to
the mandatory sinking fund requirement, the Company
shall not purchase or otherwise acquire for value, or
pay dividends on, Common Stock.
(e) The shares of such series shall not be
convertible into or exchangeable for shares of any
other class or classes or of any other series of the
same class of stock of the Company; and
(f) The issue of any additional shares of
such series or any future series shall not, by reason
of this Clause 16 of Article Fourth, be subject to
any restrictions in addition to the restrictions set
forth in the Articles of the Company.
Clause 17. There has been previously created and issued
by resolution of the Finance Committee of the Board of
Directors of the Company, being theretofore duly authorized
by the Board of Directors, adopted December 11, 1991, an
outstanding sixth series of the Cumulative Preferred Stock
authorized by this Article Fourth, consisting of 800,000
shares designated "Cumulative Preferred Stock, 7 7/8%
Series", the shares of such series having the express terms
and provisions stated in such Article Fourth and as provided
in paragraphs (a) to (f), inclusive, of such resolution, to
wit:
(a) The designation of such series shall be
"Cumulative Preferred Stock, 7 7/8% Series", and such
series shall consist of 800,000 shares;
(b) The dividend rate of such series shall be
7 7/8% a share per year;
(c) The Cumulative Preferred Stock, 7 7/8%
Series is not redeemable prior to January 1, 2004.
The entire series is subject to mandatory redemption
on January 1, 2004 at $100 per share, plus accrued
dividends to the redemption date;
(d) The shares of such series shall not be
entitled to the benefit of any sinking fund to be
applied to the purchase or redemption of shares of
such series;
(e) The shares of such series shall not be
convertible into or exchangeable for shares of any
other class or classes or of any other series of the
same class of stock of the Company; and
(f) The issue of any additional shares of
such series or any future series shall not, by reason
of this Clause 17 of Article Fourth, be subject to
any restrictions in addition to the restrictions set
forth in the Articles of the Company.
Clause 18. There has been previously created and issued
by resolution of the Finance Committee of the Board of
Directors of the Company, being theretofore duly authorized
by the Board of Directors, adopted August 13, 1992, an
outstanding seventh series of the Cumulative Preferred Stock
authorized by this Article Fourth, consisting of 800,000
shares designated "Cumulative Preferred Stock, 7 3/8%
Series", the shares of such series having the express terms
and provisions stated in such Article Fourth and as provided
in paragraphs (a) to (f), inclusive, of such resolution, to
wit:
(a) The designation of such series shall be
"Cumulative Preferred Stock, 7 3/8% Series", and such
series shall consist of 800,000 shares;
(b) The dividend rate of such series shall be
7 3/8% a share per year;
(c) The Cumulative Preferred Stock, 7 3/8%
Series is not redeemable on or before August 1, 2002.
Thereafter, such series is redeemable, in whole or in
part, at a redemption price equal to $100 per share
plus an amount equal to all dividends accrued thereon
to the date fixed for redemption;
(d) Beginning August 1, 1998 and on each
August 1 thereafter, as long as any shares of the
series shall be outstanding, the Company shall
acquire by redemption, as a mandatory sinking fund
requirement and out of any funds legally available
therefor, 40,000 shares of the series or, if less
than 40,000 shares are then outstanding, such lesser
number of shares, at a redemption price of $100 a
share, plus an amount equal to all accrued dividends
thereon to the
date fixed for redemption. The Company may redeem, at
its option, on August 1 of each such year, not more
than 40,000 additional shares at the same price. Such
optional right of redemption will not be cumulative
and will not reduce the mandatory sinking fund
requirement in any subsequent year. The sinking fund
requirement may be satisfied in whole or in part by
crediting shares of the series acquired by the
Company. To the extent the Company does not satisfy
the mandatory sinking fund obligation in any year such
obligation must be satisfied in the succeeding year or
years. If the Company is in arrears in the redemption
of the shares of the series pursuant to the mandatory
sinking fund requirement, the Company shall not
purchase or otherwise acquire for value, or pay
dividends on, Common Stock.
(e) The shares of such series shall not be
convertible into or exchangeable for shares of any
other class or classes or of any other series of the
same class of stock of the Company; and
(f) The issue of any additional shares of
such series or any future series shall not, by reason
of this Clause 18 of Article Fourth, be subject to
any restrictions in addition to the restrictions set
forth in the Articles of the Company.
ARTICLE FIFTH
These Amended Articles of Incorporation supersede and take the
place of the existing Articles of Incorporation, as amended.