RESTATED CERTIFICATE OF INCORPORATION
OF
CITIZENS UTILITIES COMPANY
CITIZENS UTILITIES COMPANY, a corporation organized and existing under
the laws of the State of Delaware (the "Company"), hereby certifies as follows:
1. The name of the corporation is
CITIZENS UTILITIES COMPANY
The date of filing its original Certificate of Incorporation with the
Secretary of State was November 12, 1935.
2. The provisions of the Amended and Restated Certificate of
Incorporation of the Company as heretofore amended, are
hereby amended and restated and integrated into the single instrument which is
hereinafter set forth, and which is entitled Amended and Restated Certificate of
Incorporation of Citizens Utilities Company without any further amendments and
without any further discrepancy between the provisions of the Amended and
Restated Certificate of Incorporation as heretofore amended and the provisions
of the said single instrument hereinafter set forth.
3. The amendments and the restatement of the Amended and Restated
Certificate of Incorporation herein certified have been duly adopted by the
stockholders and the Board of Directors, respectively, of the Company in
accordance with the provisions of Section 242 and of Section 245 of the General
Corporation Law of the State of Delaware.
4. The capital of the Company will not be reduced under or by reason
of any amendment in this Amended and Restated Certificate of Incorporation here-
inafter set forth.
5. The text of the Amended and Restated Certificate of Incorporation
shall upon the effective date of this Amended and Restated Certificate of
Incorporation read as follows:
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CITIZENS UTILITIES COMPANY
FIRST: The name of this corporation is CITIZENS UTILITIES COMPANY.
SECOND: Its principal office in the State of Delaware is to be located
at 1013 Centre Road, in the City of Wilmington, County of New Castle, and its
resident agent is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and the objects and purposes to be
transacted, promoted, and carried on are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(a) To purchase or otherwise acquire, own, operate and dispose of all or
any part of the business and properties of persons, partnerships, associations,
and other corporations engaged in any business, including that of operating
public utilities, and to make payment therefor by the issuance of securities of
this corporation or in any other manner permitted by law, and in connection
therewith to assume any or all of the bonds, mortgages, franchises, leases,
contracts, indebtedness, liabilities, and obligations of such corporations, and
to do any things necessary or expedient in connection therewith or with the
carrying out of any plan of reorganization of predecessor company or any
modification therefor.
(b) To generate, produce, buy, or in any manner acquire, and to sell,
dispose of, and distribute electricity for light, heat, power, and other
purposes and to carry on the business of furnishing, supplying, manufacturing,
and vending light heat, power, gas, water, steam heat, ice, refrigeration, and
any and all businesses incident thereto, and to build, construct, develop,
improve, acquire, hold, own, lease, maintain, and operate plants, facilities,
and works for the manufacture, generation, production, accumulation,
transmission, and distribution of electric energy, gas and steam, for light
power, heat and other purposes, and to acquire, construct, maintain, and operate
systems of water works, gas works, steam heating plants, for the supply of
water, gas, and steam heat, and to exercise rights of condemnation and eminent
domain in connection with the doing of its business objects and purposes as
herein set forth so far as may be permissible by law, to acquire, maintain,
operate, and exercise all the rights of ownership of any telephone, telegraph,
and/or other communication system or systems.
(c) To build, construct, develop, improve, acquire, hold, own, lease,
maintain and operate, by electricity or other power, street railways and
interurban railways for the transportation of passengers, mail, express,
merchandise, or other freight in any part of the world.
(d) To produce, mine, buy, sell, store, market, deal in, and prospect
for coal and minerals of all kinds and the products and by-products thereof.
- 2 -
(e) To organize, incorporate, reorganize, finance, and to aid and
assist financially or otherwise, companies, corporations, joint stock companies,
syndicates, partnerships, and associations of all kinds, and to underwrite,
subscribe for, and endorse the bonds, stocks, securities, debentures, notes, or
undertakings of any such company, corporation, joint stock company, syndicate
partnership or association, and to make any guarantee in connection therewith or
otherwise for the payment of money or for the performance of any obligation or
undertaking, and to do any and all things necessary or convenient to carry any
of such purposes into effect.
(f) To carry on the business of engineering and contracting in all of
its branches; to appraise, value, design, build, construct, enlarge, develop,
improve, extend, and repair works, plants, systems, lines, stations, buildings,
structures, mines, shafts, tunnels, wells, canals, viaducts, highways,
facilities, apparatus, machinery, equipment, appliances and appurtenances, of
any and every nature and kind whatsoever.
(g) To purchase and acquire securities, assets, and property of every
kind and description at judicial, judiciary, trustee's, pledge's, mortgagee's or
liquidating or public or private sales, either pursuant to a plan of
reorganization or otherwise, and to carry on a general salvage, liquidation, and
realization business; and also to do a general commission and brokerage
business.
(h) To hold in trust, issue on commission, make advances upon or sell,
lease, license, transfer, organize, reorganize, incorporate, or dispose of any
of the undertakings or resulting investments aforesaid, or the stock or
securities thereof; to act as agent or depositary for any of the above or like
purposes or any purpose herein mentioned; and to act as fiscal agent of any
other person, firm or corporation.
(i) To obtain the grant of, purchase, lease, or otherwise acquire any
concessions, rights, options, patents, privileges, lands, rights of way, sites,
properties, undertakings or businesses, or any right, option or contract in
relation thereto, and to perform, carry out, and fulfill the terms and
conditions thereof and to carry the same into effect, and to develop, maintain,
lease, sell, transfer, dispose of, and otherwise deal with the same.
(j) From time to time to apply for, obtain the grant of, purchase or
acquire by assignment, transfer or otherwise, and to exercise, carry out and
enjoy any license, power, authority, franchise, ordinance, order, right or
privilege, which any government or authority, supreme, municipal or local, or
any corporation or other public body shall enact, make, or grant.
(k) To issue shares of the capital, stock, bonds, debentures, debenture
stock, notes, and other obligations of this corporation for cash, for labor
done, for property, real or personal, or leases thereof, or for any combination
of any of the foregoing, or for services rendered or in exchange for the stock
debentures, debenture stock, bonds, securities, or obligations of any person,
firm, association, corporation, or other organization.
- 3 -
(l) To purchase, acquire, and lease, and to sell, lease, and dispose of
water, water rights, water records, power privileges, and appropriations for
power, light, heat, mining, milling, irrigation, agricultural, domestic or any
other use or purpose.
(m) To acquire by purchase, lease, own, hold, sell, mortgage, and
encumber both improved and unimproved real estate wherever situate; to survey,
subdivide, plat, colonize, and improve the same for the purposes of sale or
otherwise; and to construct and erect thereon factories, works, plants, shops,
stores, mills, hotels, houses, buildings, and other structures, and to own, use,
maintain, manage, and operate the same or any thereof.
(n) To own and control and acquire, by lease, purchase, construction,
or otherwise, steamships, boats, barges, hydroplanes, and vessels of all kinds
or interests therein and to operate the same either on Alaska Waters and on the
Waters of Puget Sound and on all navigable rivers and waters connected therewith
and elsewhere, or both, for the transportation of passengers and freight of all
kinds, with power to purchase, build, construct, repair, lease, sell, convey,
and operate vessels of all kinds, and all machinery, appliances and apparatus
incident, necessary or convenient thereto, or in any way connected therewith;
with power also to do a towing business, and also to purchase, own, lease,
construct, control, and operate and sell docks, wharves, landings floats,
warehouses, dry docks and dock machinery, appliances and apparatus of all kinds;
and with the power also to do a general shipbuilding, stevedore, dockage,
warehouse, and commission business; to conduct a general cold storage and
refrigeration business.
(o) To subscribe for, or cause to be subscribed for, buy, own, hold,
purchase, receive, or acquire, and/or to sell, negotiate, guarantee, assign,
deal in, exchange, transfer, mortgage, pledge and/or otherwise dispose of shares
of the capital stock, scrip, bonds, coupons, mortgages, debentures, debenture
stock, securities, notes, acceptances, drafts, and/or evidences of indebtedness
issued and/or created by any government or by any political subdivision thereof
or by any other corporations, joint stock companies, or associations, whether
public, private, or municipal, or any corporate body, and while the owner
thereof, to possess and to exercise in respect thereof all the rights, powers,
and privileges of ownership, including the right to vote thereon; to guarantee
the payment of dividends on any shares of the capital stock of any of the
corporations, joint stock companies, or associations in which this corporation
has or may at any time have an interest, and to become surety in respect of,
endorse, or otherwise guarantee the payment of the principal of or interest on
any scrip, bonds, coupons, mortgages, debentures, debenture stock, securities,
notes, drafts, bills of exchange , or evidences of indebtedness, issued or
created by any such corporations, joint stock companies, or associations; to
assume and agree to pay all or part of the indebtedness, evidenced by bonds or
otherwise, of any corporation, and to assume and agree to perform any covenants,
conditions, or agreements contained in any mortgage or trust indenture, and to
assume any other obligation, or liability of any corporation; to become surety
for or guarantee the carrying out and performance of any and all contracts,
leases, and obligations of every kind of any corporations, joint stock
companies, or associations, and in particular of any corporation, joint stock
company, or association any of whose shares, scrip, bonds, coupons, mortgages,
debentures, debenture stock, securities, notes, drafts, bills of exchange, or
evidences of indebtedness, are at any time held by or for this corporation, and
to do any acts or things designed to protect, preserve, improve or enhance the
value of any such shares, scrip, bonds, coupons, mortgages, debentures,
debenture stock, securities, notes, drafts, bills of exchange, or evidences of
indebtedness, provided, however, that this Subdivision (o) shall not be
construed to authorize this corporation to engage in the business of banking.
- 4 -
(p) To manufacture, buy, sell, and generally deal in, goods, wares,
merchandise, property, and commodities of any and every class and description,
and all articles used or useful in connection therewith; to engage in any
business whether manufacturing or otherwise which this corporation may deem
advantageous or useful in connection with any or all of the foregoing, and to
purchase, acquire, manufacture, market, or prepare for market, sell or otherwise
dispose of any article, commodity, or thing which this corporation may use in
connection with its business.
(q) To manage, operate, conduct and supervise the business, properties,
and affairs, in whole or in part, of any companies, corporations, joint stock
companies, syndicates, partnerships, and associations of all kinds whether it
owns any or all of the securities and/or obligations of such companies,
corporations, joint stock companies, syndicates, partnerships, and associations
or not.
(r) To secure, purchase, acquire, apply for, register, own, hold, sell,
or dispose of any and all copyrights, trademarks and other trade rights.
(s) To organize, or cause to be organized, under the laws of the State
of Delaware, or of any other state, territory, or country, or the District of
Columbia, a corporation or corporations for the purpose of accomplishing any or
all of the objects for which this corporation is organized, and to dissolve,
wind up, liquidate, merge or consolidate any such corporation, or corporations,
or to cause the same to be dissolved, wound up, liquidated, merged, or
consolidated.
(t) To purchase, apply for, obtain, or otherwise acquire any and all
letters patent, licenses, patent rights, patented processes, and similar rights
granted by the United States or any other government or country, or any interest
therein, or any inventions which may seem capable of being used for or in
connection with any of the objects or purposes of this corporation, and to use,
exercise, develop, sell, dispose of, lease, grant licenses in respect to, or
other interests in the same, and otherwise turn the same to account, and to
carry on any business, manufacturing or otherwise, which may be deemed to
directly or indirectly aid, effectuate, or develop, the objects or any of them
of this corporation.
(u) To lend money, to borrow money for any of the purposes of this
corporation, and to issue bonds, debentures, debenture stock, notes, and other
obligations, and to secure the same by pledge or mortgage of the whole or any
part of the property, of this corporation, either real or personal, or to issue
bonds, debentures, debenture stock, notes, or other obligations without any such
security.
(v) To enter into, make, perform, and carry out contracts of every kind
for any lawful purpose, without limit as to amount, with any person, firm,
association, or corporation.
- 5 -
(w) In connection with its business, to draw, make, accept, endorse,
discount, guarantee, execute, and issue promissory notes, bills of exchange,
drafts, warrants and all kinds of obligations and certificates and negotiable or
transferable instruments.
(x) To purchase, hold, sell, and transfer shares of its own capital
stock, bonds, notes, and other obligations of this corporation from time to time
to such extent and in such manner and upon such terms as its Board of Directors
shall determine; provided that any purchase of any of the shares of the capital
stock of the corporation shall not be made when such purchase would cause any
impairment of the capital of the corporation; and provided further that shares
of its own capital stock belonging to this corporation shall not be voted upon
directly or indirectly.
(y) To have one or more offices, to carry on any or all of its
operations and business and without restriction or limit as to amount, to
purchase, lease, or otherwise acquire, hold, and own, and to mortgage, sell,
convey, lease or otherwise dispose of, real and personal property of every class
and description in any of the states or territories of the United States and in
the District of Columbia, and in any and all foreign countries, subject to the
laws of such state, district, territory, or country.
(z) To do any and all things herein set forth, and in addition such
other acts and things as are necessary or convenient to the attainment of the
purposes of this corporation, or any of them, to the same extent as natural
persons lawfully might or could do in any part of the world.
The foregoing clauses shall be construed both as objects and
powers and it is hereby expressly provided that the foregoing enumeration of
specific power shall not be held to limit or restrict in any manner the powers
of this corporation, and are in furtherance of, and in addition to, and not in
limitation of the general powers conferred by the laws of the State of Delaware.
It is the intention that the purposes, objects and powers
specified in this Article Third and all subdivisions thereof shall, except as
otherwise expressly provided, in nowise be limited or restricted by reference to
or inference from the terms of any other clause or paragraph of this Article,
and that each of the purposes, objects, and powers specified in this Article
Third shall be regarded as independent purposes, objects, and powers.
FOURTH: (a) The total number of shares of stock which this corporation shall
have authority to issue is six hundred and fifty million (650,000,000) shares of
which fifty million (50,000,000) shares shall be shares of Preferred Stock with
a par value of one cent ($.0l) each, amounting in aggregate to five hundred
thousand dollars ($500,000), six hundred million (600,000,000) shares shall be
shares of Common Stock, par value of twenty-five ($.25) each, amounting in the
aggregate to one hundred and fifty million dollars ($150,000,000).
(b) The Preferred Stock may be issued from time to time in one or more
series, and in such amounts as may be determined by the Board of Directors. The
designations, powers, preferences and relative, participating optional,
conversion and other rights, and the qualifications, limitations and
restrictions thereof, of the Preferred Stock of each series, which shall not be
fixed by the Certificate of Incorporation, shall be such as may be fixed or
altered by resolution or resolutions by the Board of Directors (authority so to
do being hereby expressly granted to, and vested in, the Board of Directors) to
the full extent now or hereafter permitted by the laws of Delaware.
- 6 -
(c ) Each holder of Common Stock shall at every meeting of the
stockholders be entitled to one vote in person or by written proxy signed by him
for each full share of Common Stock owned by him and shall be entitled to vote
upon all such matters as may come before the stockholders including without
limitation the election of directors, which shall be decided by majority vote of
the Common Stock present or represented by proxy and entitled to vote at the
meeting. The stockholders of this corporation shall have no preemptive right to
subscribe to any issue of shares of stock of this corporation now or hereafter
made.
(d) Each full share of the former Common Stock Series B with the par
value of twenty-five cents ($.25) each ("Common Stock Series B") which shall be
outstanding immediately prior to the time when this Article FOURTH shall become
effective, shall, upon such effectiveness, automatically and without any further
action on the part of the holder thereof, be changed and reclassified into one
full share of Common Stock. Each certificate representing a share or shares of
Common Stock Series B (including those certificates representing a share or
shares of the former Common Stock Series A) shall thereafter represent a like
number of shares of Common Stock of this corporation into which the shares of
Common Stock Series B have been changed and reclassified and shall for all
purposes be deemed evidence of the ownership of a like number of shares of
Common Stock of this corporation into which the shares of Common Stock Series B
have been changed and reclassified. The holders of such certificates shall not
be required immediately to surrender the same in exchange for certificates of
Common Stock, but, as such certificates representing shares of Common Stock
Series B are surrendered for transfer, this corporation shall cause to be issued
certificates representing shares of Common Stock, and, at any time upon
surrender by any holders of certificates representing Common Stock Series B,
this corporation shall cause to be issued thereof certificates for a like number
of shares of Common Stock of this corporation."
FIFTH: The minimum amount of capital with which it will commence business
is One Thousand Dollars ($1,000.00).
SIXTH: The name and place of residence of each of the incorporators are as
follows:
NAME RESIDENCE
---- ---------
L. H. HERMAN Wilmington, Delaware
WALTER LENZ Wilmington, Delaware
W. T. HOBSON Wilmington, Delaware
SEVENTH: This corporation is to have perpetual existence.
- 7 -
EIGHTH: The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
NINTH: In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized:
To make, alter, and repeal the by-laws subject to the power of the
stockholders to change or repeal such bylaws; provided, however, that prior
to the second Tuesday in March, 1937, no by-laws shall be adopted or amended by
the directors so as to authorize or provide (a) for the holding of any meeting
of stockholders for the election of directors at any place other than
Minneapolis, Minnesota or at any time prior to the holding of the first annual
meeting of stockholders for election of directors on the second Tuesday in
March, 1937; or (b) for the holding of meetings of directors, prior to such
first meeting of stockholders for the election of directors, at any place other
than as provided in the original by-laws;
To set apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose and to alter or
abolish any such reserve;
To fix, determine, and vary from time to time the amount to be main-
tained as surplus and the amount or amounts to be set apart for working capital.
All of the powers of this corporation, insofar as the same lawfully
may be vested by this Certificate in the Board of Directors, are hereby con-
ferred upon the Board of Directors of this corporation.
Directors need not be elected by ballot, unless voting by ballot
shall be requested by the holders of ten percent (10%) or more of the shares of
stock represented at the meeting of stockholders at which the directors are to
be elected.
TENTH: This corporation may in its by-laws make any other provisions or
requirements for the management or conduct of the business of this corporation
provided the same be not inconsistent with the provisions of this Certificate or
contrary to the laws of the State of Delaware, and subject to the limitations
upon amendment of by-laws contained in this Certificate of Incorporation.
ELEVENTH: This corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law and all rights conferred on officers,
directors, and stockholders herein are granted subject to this reservation.
TWELFTH: A. director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the directors
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
- 8 -
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporation action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
B. No modification or repeal of the provisions of this Article shall
adversely affect any right or protection of any director of the corporation
existing at the date of such modification or repeal or create any liability or
adversely affect any such right or protection for any acts or omissions of such
director occurring prior to such modification or repeal.
IN WITNESS WHEREOF, said CITIZENS UTILITIES COMPANY has caused this
Certificate to be signed by Edward O. Kipperman, its Vice President, and
attested by Charles J. Weiss, its Secretary, on this 2nd day of July, 1998.
CITIZENS UTILITIES COMPANY
By:____________________________
Edward O. Kipperman
Vice President
ATTEST:
By:_________________________
Charles J. Weiss
Secretary
- 9 -