Amended
Articles of Incorporation
of
THE CINCINNATI GAS & ELECTRIC COMPANY
Effective
October 23, 1996
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 Amended 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 payment 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
canceled 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 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) 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 (b) 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 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 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 of
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 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 holders of Common Stock, 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
these Amended 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
these Amended Articles of the Company.
ARTICLE FIFTH
These Amended Articles of Incorporation supersede and take the place of
the existing Amended Articles of Incorporation, as amended.