EXHIBIT A
RESTATED
ARTICLES OF INCORPORATION
OF
MIDAMERICAN ENERGY COMPANY
TO THE SECRETARY OF STATE
OF THE STATE OF IOWA:
Pursuant to the provisions of Sections 490.201 and 202
of the Iowa Business Corporation Act, the undersigned incorpora-
tor hereby adopts the following Restated Articles of
Incorporation ("Articles of Incorporation"):
ARTICLE I
The name of the corporation is "MidAmerican Energy"
Company (hereinafter sometimes called the "Corporation") and its
registered office shall be located at ______________________ with
the right to establish and maintain branch offices at such other
points within and without the State of Iowa as the Board of
Directors of the Corporation may, from time to time, determine.
The name of the Corporation's registered agent at such registered
office is ________________.
ARTICLE II
The nature of the business or purposes to be conducted
or promoted is to engage in any or all lawful act or activity for
which a corporation may be incorporated under the Iowa Business
Corporation Act.
ARTICLE III
The name and address of the incorporator is:
______________________
______________________
______________________
______________________, Iowa _____
ARTICLE IV
A. The aggregate number of shares which the
Corporation shall have authority to issue is ___________ shares
of Common Stock, no par value ("Common Stock"), __________ shares
of Class I Preferred Stock, par value $100 per share ("Class I
Preferred Stock"), _________ shares of Class M Preferred Stock,
no par value ("Class M Preferred Stock"), and _________ shares of
Preference Stock, no par value ("Preference Stock").
B. The shares of authorized Common Stock shall be
identical in all respects and shall have equal rights and
privileges. For all purposes, each registered holder of Common
Stock shall, at each meeting of shareholders, be entitled to one
vote for each share of Common Stock held, either in person or by
proxy duly authorized in writing. Except to the extent required
by law or as permitted by these Articles of Incorporation, as
amended from time to time, the registered holders of the shares
of Common Stock shall have unlimited and exclusive voting rights.
C. The Board of Directors, at any time or from time to
time, may, and is hereby authorized to, issue and dispose of any
of the authorized and unissued shares of Common Stock and any
treasury shares for such kind and amount of consideration and to
such persons, firms or corporations, as may be determined by the
Board of Directors, subject to any provisions of law then
applicable. The holders of Common Stock shall have no preemptive
rights to acquire or subscribe to any shares, or securities
convertible into shares, of Common Stock.
D. The Board of Directors, at any time or from time to
time may, and is hereby authorized to, divide the authorized and
unissued shares of Class I Preferred Stock, Class M Preferred
Stock and Preference Stock into one or more classes or series and
in connection with the creation of any class or series to
determine, in whole or in part, to the full extent now or
hereafter permitted by law, by adopting one or more articles of
amendment to the Articles of Incorporation providing for the
creation thereof, the designation, preferences, limitations and
relative rights of such class or series, which may provide for
special, conditional or limited voting rights, or no rights to
vote at all, and to issue and dispose of any of such shares and
any treasury shares for such kind and amount of consideration and
to such persons, firms or corporations, as may be determined by
the Board of Directors, subject to any provisions of law then
applicable.
E. The Board of Directors, at any time or from time to
time may, and is hereby authorized to, create and issue, whether
or not in connection with the issue and sale of any shares of its
Common Stock, Class I Preferred Stock, Class M Preferred Stock or
Preference Stock or other securities of the Corporation. Such
warrants, rights and/or options entitling the holders thereof to
purchase from the Corporation any shares of its Common Stock,
Class I Preferred Stock, Class M Preferred Stock or Preference
Stock or other securities of the Corporation. Such warrants,
rights, or options shall be evidenced by such instrument or
instruments as shall be approved by the Board of Directors of the
Corporation. The terms upon which, the time or times (which may
be limited or unlimited in duration) at or within which, and the
price or prices (which shall be not less than the minimum amount
prescribed by law, if any) at which any such shares or other
securities may be purchased from the Corporation upon the
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exercise of any such warrant, right or option shall be fixed and
stated in the resolution or resolutions of the Board of Directors
of the Corporation providing for the creation and issue of such
warrants, rights or options. The Board of Directors of the
Corporation is hereby authorized to create and issue any such
warrants, rights or options from time to time for such
consideration, if any, and to such persons, firms or
corporations, as the Board of Directors may determine.
F. The Corporation may authorize the issue of some or
all of the shares of any or all of the classes of its capital
stock without certificates.
G. The Corporation shall not be required to issue
certificates representing any fraction or fractions of a share of
stock of any class but may issue in lieu thereof one or more
non-dividend bearing and non-voting scrip certificates in such
form or forms as shall be approved by the Board of Directors of
the Corporation, each scrip certificate representing a fractional
interest in one share of stock of any class. Such scrip
certificates upon presentation together with similar scrip
certificates representing in the aggregate an interest in one or
more full shares of stock of any class shall entitle the holders
thereof to receive one or more full shares of stock of such
class. Such scrip certificates may contain such terms and
conditions as shall be fixed by the Board of Directors of the
Corporation and may become void and of no effect after a period
to be determined by the Board of Directors and to be specified in
such scrip certificates.
H. The Corporation shall be entitled to treat the
person in whose name any share of Common Stock, Class I Preferred
Stock, Class M Preferred Stock or Preference Stock is registered
as the owner thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or interest in, such
share on the part of any person, whether or not the Corporation
shall have notice thereof except as may be expressly provided
otherwise by the laws of the State of Iowa.
ARTICLE V
The term of corporate existence of the Corporation
shall be perpetual.
ARTICLE VI
A. All corporate powers shall be exercised by or under
the authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of Directors.
The number of directors of the Corporation shall be fixed by the
Bylaws but shall be no less than ____ (__) and no greater than
____ (__), and such number may be increased or decreased from
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time to time by amendment to the Bylaws, but no decrease shall
have the effect of shortening the term of any incumbent director.
Directors shall be elected by the shareholders at each annual
meeting of the Corporation as specified herein and in the Bylaws.
Directors need not be shareholders.
B. Each director shall serve until his or her
successor is elected and qualified or until his or her prior
death, retirement, resignation or removal. Should a vacancy
occur or be created, whether arising through death, resignation
or removal of a director or through an increase in the number of
directors, such vacancy shall be filled solely by a majority vote
of the remaining directors though less than a quorum of the Board
of Directors. A director so elected to fill a vacancy shall
serve for the remainder of the then present term of office of the
Board of Directors.
C. Any director or the entire Board of Directors may
be removed for cause as set forth in this paragraph C. Removal
of a director for cause must be approved by the affirmative vote
of the holders of shares of capital stock of the Corporation
having at least 75% of the votes of all outstanding shares of
capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class,
only at a meeting called for the purpose of removing the director
and after notice stating that the purpose, or one of the
purposes, of the meeting is removal of the director. Any action
for removal of a director must be taken within one year of such
cause.
D. The Board of Directors, by a vote of a majority of
the entire Board, may appoint from the directors an executive
committee and such other committees as they may deem judicious;
and to such extent as shall be provided in the resolution of the
Board or in the Bylaws, may delegate to such committees all or
any of the powers of the Board of Directors which may be lawfully
delegated, and such committees shall have and thereupon may
exercise all or any of the powers so delegated to them. The
Board of Directors of the Corporation or the Bylaws may provide
the number of members necessary to constitute a quorum of any
committee and the number of affirmative votes necessary for
action by any committee.
E. The Board of Directors shall elect such officers of
the Corporation as specified in the Bylaws. All vacancies in the
offices of the Corporation shall be filled by the Board of
Directors. The Board of Directors shall also have authority to
appoint such other managing officers and agents as they may from
time to time determine.
ARTICLE VII
Special meetings of shareholders of the Corporation may
be called at any time by the Chairman of the Board of Directors
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or by the President on at least ten days' notice to each
shareholder entitled to vote at the special meeting, by mail at
such shareholder's last known post office address, specifying the
time, place and purpose or purposes of the special meeting.
ARTICLE VIII
The private property of the shareholders of the
Corporation shall be exempt from all corporate debts.
ARTICLE IX
A. In addition to any affirmative vote required by law
or under any other provision of these Articles of Incorporation:
(i) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with or into any
Other Entity (as hereinafter defined); or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of related transactions) to or with any Other Entity
of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of
$25,000,000 or more; or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Other Entity in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $25,000,000 or
more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation; or
(v) any reclassification of securities (including any
reverse stock split), recapitalization, reorganization,
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with
or into or otherwise involving any Other Entity) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or
any Subsidiary which is directly or indirectly owned by any
Other Entity; or
(vi) any direct or indirect purchase or other
acquisition by the Corporation of any equity security (as
defined in Rule 3a11-1 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on
June 30, 1994) of any class from any Interested Security-
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holder (as hereinafter defined) who has beneficially owned
such securities for less than two years prior to the date of
such purchase or any agreement in respect thereof,
shall require the affirmative vote of the holders of shares of
capital stock of the Corporation having at least 75% (excluding,
in the case of (i) through (v) above, shares beneficially owned
by a 25% Shareholder (as hereinafter defined), and, in the case
of (vi) above, shares beneficially owned by such Interested
Securityholder) of the votes of all outstanding shares of capital
stock of the Corporation entitled to vote generally in the
election of directors, considered for the purpose of this
Article IX as one class ("Voting Shares"). Such affirmative vote
shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage vote may be specified,
by law or in any agreement with any national securities exchange
or otherwise.
B. The provisions of paragraph A of this Article IX
shall not be applicable to any particular Business Combination
(as hereinafter defined), and such Business Combination shall
require only such affirmative vote as is required by law and any
other provision of these Articles of Incorporation, if all of the
conditions specified in either of the following subparagraphs 1
and 2 shall have been satisfied.
1. A majority of the Continuing Directors (as
hereinafter defined) shall have approved the Business
Combination (but only if a majority of the Board of
Directors are Continuing Directors); or
2. All of the following conditions shall have been
met:
a. The ratio of:
(i) the aggregate amount of the cash and the
Fair Market Value as of the date of consummation
of the Business Combination of other consideration
to be received per share by holders of a
particular class or series of Voting Shares in
such Business Combination
to
(ii) the Fair Market Value per share of such
class or series of Voting Shares on the date of
the first public announcement of such Business
Combination or the date on which any 25%
Shareholder became a 25% Shareholder, whichever is
higher
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is at least as great as the ratio (which ratio shall
equal the number one in the event that such 25%
Shareholder has never beneficially owned any shares of
such class or series of Voting Shares) of
(x) the highest per share price
(including brokerage commissions, transfer
taxes and soliciting dealers' fees) which
such 25% Shareholder has theretofore paid for
any share of such class or series of Voting
Shares acquired by it
to
(y) the Fair Market Value per share of
such class or series of Voting Shares on the
date of the initial acquisition by such 25%
Shareholder of any share of such class or
series of Voting Shares;
b. The aggregate amount of the cash and Fair
Market Value as of the date of consummation of the
Business Combination of other consideration to be
received per share by holders of Class I Preferred
Stock, Class M Preferred Stock and Preference Stock in
such Business Combination is not less than the highest
preferential amount per share to which holders of
shares of such class or series of Class I Preferred
Stock, Class M Preferred Stock and Preference Stock
would, respectively, be entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, regardless of whether
the Business Combination to be consummated constitutes
such an event;
c. The consideration to be received by holders of
a particular class or series of Voting Shares in such
Business Combination shall be in cash or in the same
form and of the same kind as the consideration paid by
the 25% Shareholder in acquiring the shares of such
class or series of Voting Shares already owned by it;
d. After such 25% Shareholder has acquired
ownership of not less than 25% of the then outstanding
Voting Shares (a "25% Interest") and prior to the
consummation of such Business Combination:
(i) the 25% Shareholder shall have taken
steps to ensure that the Corporation's Board of
Directors includes at all times representation by
Continuing Director(s) proportionate to the ratio
that the Voting Shares which from time to time are
owned by persons who are not 25% Shareholders
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("Public Holders") bear to all Voting Shares
outstanding at such respective times (with a
Continuing Director to occupy any resulting
fractional board position):
(ii) there shall have been no reduction in
the rate of distributions ("Dividends") payable on
the Common Stock except as may have been approved
by a majority vote of the Continuing Directors;
(iii) such 25% Shareholder shall not have
acquired any newly issued shares of stock,
directly or indirectly, from the Corporation
(except upon conversion of convertible securities
acquired by it prior to obtaining a 25% Interest
or as a result of a pro rata stock Dividend or
stock split); and
(iv) such 25% Shareholder shall not have
acquired any additional Voting Shares or
securities convertible into or exchangeable for
Voting Shares except as a part of the transaction
which resulted in such 25% Shareholder acquiring
its 25% Interest;
e. Prior to or upon the consummation of such
Business Combination, such 25% Shareholder shall not
have (i) received the benefit, directly or indirectly
(except proportionately as a shareholder), of any
loans, advances, guarantees, pledges or other financial
assistance or tax credits provided by the Corporation,
or (ii) made any major change in the Corporation's
business or equity capital structure without the
unanimous approval of the entire Board of Directors;
and
f. A proxy statement responsive to the
requirements of the Securities Exchange Act of 1934 and
the General Rules and Regulations promulgated
thereunder shall have been mailed to all holders of
Voting Shares for the purpose of soliciting
shareholders' approval of such Business Combination.
Such proxy statement shall contain at the front thereof
in a prominent place, any recommendations as to the
advisability (or inadvisability) of the Business Combi-
nation which the Continuing Directors, or any of them,
may have furnished in writing and, if deemed advisable
by a majority of the Continuing Directors, an opinion
of a reputable investment banking firm as to the,
fairness (or lack of fairness) of the terms of such
Business Combination, from a financial point of view,
to the holders of Voting Shares other than any 25%
Shareholder (such investment banking firm to be
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selected by a majority of the Continuing Directors, to
be furnished with all information it reasonably
requests and to be paid a reasonable fee for its
services upon receipt by the Corporation of such
opinion).
C. For the purposes of this Article IX:
1. The term "Business Combination" shall mean any
transaction which is referred to in any one or more of clauses
(i) through (v) of paragraph A of this Article IX;
2. The term "Other Entity" shall include (a) any 25%
Shareholder and (b) any other person (whether or not itself a 25%
Shareholder) which after any Business Combination, would be an
Affiliate (as hereinafter defined) of any 25% Shareholder;
3. The term "person" shall mean any individual, firm,
trust, partnership, association, corporation or other entity;
4. The term "25% Shareholder" shall mean, in respect
to any Business Combination, any person (other than the
Corporation or any Subsidiary) who or which, as of the record
date for the determination of shareholders entitled to notice of
and to vote on such Business Combination, or immediately prior to
the consummation of any such transactions,
(a) is the beneficial owner, directly or indirectly,
of not less than 25% of the Voting Shares, or
(b) is an Affiliate of the Corporation and at any time
within five years prior thereto was the beneficial owner,
directly or indirectly, of not less than 25% of the then
outstanding Voting Shares, or
(c) is an assignee of or has otherwise succeeded to
any shares of capital stock of the Corporation which were at
any time within five years prior thereto beneficially owned
by any 25% Shareholder, and such assignment or succession
shall have occurred in the course of a transaction or series
of transactions not involving a public offering within the
meaning of the Securities Act of 1933;
5. A person shall be the beneficial owner of any
Voting Shares
(a) which such person or any of its Affiliates and
Associates (as hereinafter defined) beneficially own,
directly or indirectly, or
(b) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
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time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(c) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares of
capital stock of the Corporation;
6. The outstanding Voting Shares shall include shares
deemed owned through application of subparagraph 5 of this
paragraph C above but shall not include any other Voting Shares
which may be issuable pursuant to any agreement or upon exercise
of conversion rights, warrants or options, or otherwise;
7. The term "Continuing Director" shall mean (a) a
person who was a member of the Board of Directors of the
Corporation elected by the Public Holders prior to the date as of
which any 25% Shareholder acquired in excess of 10% of the then
outstanding Voting Shares or (b) a person designated (before his
or her initial election as a director) as a Continuing Director
by a majority of the then Continuing Directors;
8. The term "other consideration to be received" shall
include, without limitation, Voting Shares retained by Public
Holders in the event of a Business Combination in which the
Corporation is the surviving corporation;
9. The terms "Affiliate" and "Associate" shall have
the respective meanings given those terms in Rule 12b-2, of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on June 30, 1994;
10. The term "Subsidiary" shall mean any corporation
or other entity of which a majority of the outstanding voting
securities or other equity interests having the power, under
ordinary circumstances, to elect a majority of the directors, or
otherwise to direct the management and policies, of such
corporation or other entity, is owned, directly or indirectly, by
the Corporation.
11. The term "Interested Securityholder" shall mean,
with respect to any transaction which is referred to in Clause
(vi) of paragraph A of this Article IX, any person (other than
the Corporation or any Subsidiary) who or which, as of the record
date for the determination of shareholders entitled to notice of
and to vote on such transaction, or immediately prior to the
consummation of any such transaction,
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(a) is the beneficial owner, directly or indirectly,
of not less than five percent of the Voting Shares, or
(b) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than five percent of the
then outstanding Voting Shares, or
(c) is an assignee of or has otherwise succeeded to
any shares of the class of securities to be acquired which
were at any time within two years prior thereto beneficially
owned by an Interested Securityholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933;
and
12. The term "Fair Market Value" shall mean (i) in the
case of capital stock, the highest closing sale price during the
30-day period immediately preceding the date in question of a
share of such capital stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such capital stock is not
quoted on the Composite Tape, on the New York Stock Exchange, or,
if such capital stock is not listed on such exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such capital stock is
listed, or, if such capital stock is not listed on any such
exchange, the highest closing bid quotation with respect to a
share of such capital stock during the 30-day period preceding
the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in
use, or if no such quotations are available the fair market value
on the date in question of a share of such capital stock as
determined by a majority of the Continuing Directors in good
faith; and (ii) in the case of property other than cash or
capital stock, the fair market value of such property on the date
in question as determined in good faith by a majority of the
Continuing Directors; provided that any such determination by the
Continuing Directors shall only be effective if made at a meeting
at which a majority of Continuing Directors is present.
D. A majority of the Continuing Directors shall have
the power and duty to determine for purposes of this Article IX,
on the basis of information known to them, (i) the number of
Voting Shares beneficially owned by any person, (ii) whether a
person is an Affiliate or Associate of another, (iii) whether a
person has an agreement, arrangement or understanding with
another as to the matters referred to in subparagraph 4 of
paragraph C, (iv) whether the assets subject to any Business
Combination have an aggregate Fair Market Value of $25,000,000 or
more, and (v) such other matters with respect to which a
determination is required under this Article IX.
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E. Nothing contained in this Article IX shall be
construed to relieve any 25% Shareholder from any fiduciary
obligation imposed by law.
ARTICLE X
Any amendment, alteration, change or repeal of
Article VIA, VIB and VIC, Article IX or this Article X of these
Articles of Incorporation shall require the affirmative vote of
the holders of shares of capital stock of the Corporation having
at least 75% of the votes of all outstanding Voting Shares (as
defined in Article IX), excluding from such affirmative vote
shares beneficially owned by any 25% Shareholder or by any
Interested Securityholder in the case of an amendment of the
provisions of paragraph A of Article IX that exclude from an
affirmative vote required pursuant to such paragraph A shares
beneficially owned by 25% Shareholders or shares beneficially
owned by Interested Securityholders, as the case may be.
ARTICLE XI
The Board of Directors may make Bylaws, and from time
to time may alter, amend or repeal any Bylaws; but any Bylaws
made by the Board of Directors may be altered or repealed by the
shareholders entitled to vote generally at any annual meeting, or
at any special meeting provided notice of such proposed
alteration or repeal be included in the notice of meeting.
ARTICLE XII
A. A director of the Corporation shall not be
personally liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director,
except for liability:
(i) for any breach of the director's duty of loyalty
to the Corporation or its shareholders; or
(ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of
law; or
(iii) for any transaction from which the director
derives an improper personal benefit; or
(iv) under Section 490.833, or a successor provision,
of the Iowa Business Corporation Act.
B. If, after the date these Articles of Incorporation
are filed with the Iowa Secretary of State, the Iowa Business
Corporation Act is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be deemed
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eliminated or limited to the fullest extent permitted by the Iowa
Business Corporation Act, as so amended. Any repeal or
modification of Section A, or this Section B of this Article XII,
by the shareholders of the Corporation shall be prospective only
and shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal
or modification.
ARTICLE XIII
A. Each person who was or is a party or is threatened
to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative,
investigative or arbitration ("proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal
representative, is or was a director, officer or professional or
supervisory employee of the Corporation or is or was serving at
the request of the Corporation as a director, officer,
professional or supervisory employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity while serving as a director, officer,
professional or supervisory employee or agent or in any other
capacity while serving as a director, officer, professional or
supervisory employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by
the Iowa Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said Act permitted
the Corporation to provide prior to such amendment), against all
expenses, liability and loss (including without limitation
attorneys' fees, all costs, judgments, fines, Employee Retirement
Income Security Act excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith. Such right shall be a contract
right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that the payment of
such expenses incurred by a director, officer or professional or
supervisory employee in his or her capacity as a director,
officer or professional or supervisory employee (and not in any
other capacity in which service was or is rendered by such person
while a director, officer or professional or supervisory employee
including, without limitation, service to an employee benefit
plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director, officer or
professional or supervisory employee, to repay all amounts so
advanced if it should be determined ultimately that such
director, officer or professional or supervisory employee is not
entitled to be indemnified under this Article XIII or otherwise.
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B. If a claim under Section A is not paid in full by
the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expenses
of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking has been
tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Iowa
Business Corporation Act for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior
to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the Iowa Business
Corporation Act, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or
its shareholders) that the claimant had not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant had not met the applicable standard
of conduct.
C. Indemnification provided hereunder shall, in the
case of the death of the person entitled to indemnification,
inure to the benefit of such person's heirs, executors or other
lawful representatives. The invalidity or unenforceability of
any provision of this Article XIII shall not affect the validity
or enforceability of any other provision of this Article XIII.
D. Any action taken or omitted to be taken by (i) any
director, officer or professional or supervisory employee in good
faith and in compliance with or pursuant to any order,
determination, approval or permission made or given by a
commission, board, official or other agency of the United States
or of any state or other governmental authority with respect to
the property or affairs of the Corporation or any such business
corporation, not-for-profit corporation, joint venture, trade
association or other entity over which such commission, board,
official or agency has jurisdiction or authority or purports to
have jurisdiction or authority or (ii) by any director of the
Corporation pursuant to Section D of Article IX shall be presumed
to be in compliance with the standard of conduct set forth in
Section 490.851 (or any successor provision) of the Iowa Business
Corporation Act whether or not, in the case of clause (i), it may
thereafter be determined that such order, determination, approval
or permission was unauthorized, erroneous, unlawful or otherwise
improper.
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E. Unless finally determined, the termination of any
litigation, whether by judgment, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not create a
presumption that the action taken or omitted to be taken by the
person seeking indemnification did not comply with the standard
of conduct set forth in Section 490.851 (or any successor
provision) of the Iowa Business Corporation Act.
F. The rights conferred on any person by this
Article XIII shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision
of the Articles of Incorporation, Bylaws, agreement, vote of
shareholders or disinterested directors or otherwise.
Indemnification provided hereunder shall, in the case of the
death of the person entitled to indemnification, inure to the
benefit of such person's heirs, executors or other lawful
representatives. The invalidity or unenforceability of any
provision of this Article XIII shall not affect the validity or
enforceability of any other provision of this Article XIII.
G. The Corporation may maintain insurance, at its
expense, to protect itself and any such director, officer,
professional or supervisory employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss
under the Iowa Business Corporation Act.
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ARTICLES OF AMENDMENT
TO
RESTATED
ARTICLES OF INCORPORATION
OF
MIDAMERICAN ENERGY COMPANY
To the Secretary of State
of the State of Iowa:
These Articles of Amendment are delivered to you for filing
pursuant to the provisions of Section 490.601, and in accordance
with Section 490.602(4), of the Iowa Business Corporation Act.
(a) The name of the Corporation is:
MidAmerican Energy Company
(b) As of _______, 199_, the Board of Directors of
MidAmerican Energy Company, an Iowa corporation
("Corporation"), duly adopted the following Articles of
Amendment to the Restated Articles of Incorporation
("Articles of Incorporation") of the Corporation,
determining certain terms of its class of shares
designated in Article IV of its Articles of
Incorporation as Class I Preferred Stock, par value
$100 per share ("Class I Preferred Stock"), Class M
Preferred Stock, no par value ("Class M Preferred
Stock"), and Preference Stock, no par value
("Preference Stock"), and creating and determining the
terms of the three series of Class I Preferred Stock,
eight series of Class M Preferred Stock and two series
of Preference Stock (collectively, the "Merger Series")
to be issued on the date on which the merger ("Merger")
of Midwest Resources Inc., an Iowa corporation, Midwest
Power Systems Inc., an Iowa corporation ("Midwest
Power"), and Iowa-Illinois Gas and Electric Company, an
Illinois corporation ("Iowa-Illinois"), with and into
the Corporation becomes effective ("Effective Date of
the Merger"), upon the conversion of (i) all shares of
each series of Preferred Stock, no par value, of
Midwest Power into shares of a particular series of
Class M Preferred Stock, (ii) all shares of each series
of Preferred Shares, par value $100 per share, of Iowa-
Illinois into shares of a particular series of Class I
Preferred Stock, and (iii) all shares of each series of
Preference Shares, without par value, of Iowa-Illinois
into shares of a particular series of Preference Stock,
including the certain preferences, limitations and
relative rights of holders of shares of Class I
Preferred Stock, Class M Preferred Stock and Preference
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Stock and the designation, preferences. limitations and
relative rights of each Merger Series.
(c) The text of the Amendment determining the terms of the
Class I Preferred Stock, Class M Preferred Stock and
Preference Stock and the terms of each Merger Series,
is as follows:
DIVISION I
Provisions Relating to Class I Preferred Stock
(A) Issue in Series. The shares of Class I Preferred Stock may
be divided into and issued in series, each of which series
shall be so designated as to distinguish the shares thereof
from the shares of all other series and classes. Authority
is hereby expressly vested in the Board of Directors to
divide any or all of the shares of Class I Preferred Stock
from time to time authorized into series, to fix the
designation of each such series and, subject to the
limitations stated herein or imposed by law, to fix and
determine the following relative rights and preferences of
shares of each such series:
(1) the rate of distribution ("Dividend") for shares for
such series;
(2) the price at and the terms and conditions on which such
shares may be redeemed;
(3) the amount payable upon such shares in event of
voluntary liquidation;
(4) sinking fund provisions for the redemption or purchase
of such shares, provided, however, that the Board of
Directors shall not create a sinking fund in respect of
any series of Class I Preferred Stock unless provision
for a sinking fund at least as beneficial to all issued
and outstanding shares of Class I Preferred Stock shall
either then exist or be at the same time created; and
(5) the terms and conditions on which such shares may be
converted, if the shares of such series are issued with
the privilege of conversion.
(B) Dividends. The holders of shares of Class I Preferred Stock
of each series shall be entitled to receive, when and as
declared by the Board of Directors from assets legally
available for the payment thereof, Dividends at the rate
fixed for such series, and no more, payable quarterly on the
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first day of each of the months of February, May, August and
November (the quarterly "Dividend Payment Dates"), in each
case with respect to the quarterly Dividend period ending on
the day prior to such quarterly Dividend Payment Date.
Such Dividends shall accrue and be cumulative with respect
to each share of each series from and including the date of
issue thereof.
No Dividend shall be declared on the shares of any series of
Class I Preferred Stock in respect of the accumulations for
any quarterly Dividend period or portion thereof unless
Dividends shall likewise be or have been declared with
respect to accumulations on all then outstanding shares of
Class I Preferred Stock of each other series thereof and on
all outstanding shares of Parity Stock of each series
thereof for the same period or portion thereof. Except as
provided in Section (C)(2) of Division II, the ratios of the
Dividends declared to Dividends accumulated with respect to
any quarterly Dividend period on the shares of Class I
Preferred Stock of each series thereof and on all shares of
Parity Stock of each series thereof outstanding shall be
identical. Accumulations of Dividends shall not bear
interest.
So long as any shares of Class I Preferred Stock are
outstanding, no Dividend shall be paid or declared, or other
distribution made, on Junior Shares, nor shall any Junior
Shares be purchased, redeemed, retired or otherwise acquired
for a consideration if Preferential Dividends on outstanding
shares of Class I Preferred Stock for the current and all
past quarterly Dividend periods or portions thereof shall
not have been paid, or declared and set apart for payment,
or if the Corporation shall be in default or deficient under
any requirement of a sinking fund established with respect
to outstanding shares of Class I Preferred Stock of any
series for any period then elapsed; provided, however, that
the restrictions of this paragraph shall not apply to the
declaration and payment of Dividends on Junior Shares if
payable solely in Junior Shares, nor to the acquisition of
any Junior Shares through the application of the proceeds of
any Junior Shares sold at or about the time of such
acquisition, nor shall such restrictions prevent the
transfer of any amount from surplus to stated capital.
(C) Liquidation Preferences. In the event of involuntary
dissolution, liquidation or winding up ("Liquidation") of
the Corporation, the holders of shares of Class I Preferred
Stock of each series outstanding shall be entitled to
receive out of the assets of the Corporation an amount per
share equivalent to the par value thereof, plus an amount
equivalent to Preferential Dividends at the rate fixed and
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determined for such series accrued and unpaid to the date
fixed for payment, but no more.
In the event of voluntary Liquidation of the Corporation,
the holders of shares of Class I Preferred Stock of each
series outstanding shall be entitled to receive out of the
assets of the Corporation such amount per share as shall
have been fixed and determined for such series by the Board
of Directors, plus an amount equivalent to Preferential
Dividends at the rate fixed and determined for such series
accrued and unpaid to the date fixed for payment, but no
more.
Until payment to the holders of outstanding shares of Class
I Preferred Stock as aforesaid, or until moneys or other
assets sufficient for such payment shall have been set apart
for payment by the Corporation, separate and apart from its
other funds and assets for the account of such holders so as
to be and continue to be available for payment to such
holders, no payment or distribution shall be made to holders
of Junior Shares in connection with or upon such
Liquidation.
Neither a consolidation nor merger of the Corporation with
or into any other corporation, nor a merger of any other
corporation into the Corporation, nor the purchase or
redemption of all or any part of the outstanding shares of
any class or classes of the Corporation, nor the sale or
transfer of the property and business of the Corporation as
or substantially as an entirety, shall be construed to be a
Liquidation of the Corporation within the meaning of this
Division I.
(D) Redemptions. The Corporation may at its option expressed by
vote of the Board of Directors, at any time or from time to
time, redeem the whole or any part of the shares of Class I
Preferred Stock, or of any series thereof, at the redemption
price or prices at the time in effect, any such redemption
of shares of Class I Preferred Stock to be at such time and
at such place in the City of Chicago, State of Illinois, as
shall likewise be determined by vote of the Board of
Directors. Notice of any proposed redemption of shares of
Class I Preferred Stock shall be given by the Corporation by
mailing a copy of such notice, not more than 40 nor less
than 30 days prior to the time fixed for redemption, to the
holders of record of the shares of Class I Preferred Stock
to be redeemed, at their respective addresses then appearing
on the books of the Corporation. It shall not be necessary
that the holders of record of any shares of Class I
Preferred Stock to be redeemed shall actually have received
notice of redemption thereof, provided the same shall have
been mailed as aforesaid. In case less than all of the
shares of Class I Preferred Stock of any series are to be
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redeemed, the shares so to be redeemed shall be determined
by lot in such manner as may be prescribed by the Board of
Directors, and the certificates evidencing such shares shall
be specified by number in the notice of such redemption. By
the time so fixed for redemption, the Corporation shall, and
at any time within 40 days prior to such time may, deposit
in trust, for the account of the holders of the shares of
Class I Preferred Stock to be redeemed, funds necessary for
such redemption with a bank or trust company in good
standing, organized under the laws of the United States of
America or of the State of Illinois, located in the City of
Chicago, Illinois, and having a combined capital, surplus
and undivided profits of at least $5,000,000, which shall be
designated in such notice of redemption. Notice of
redemption having been mailed and funds necessary for such
redemption having been deposited as aforesaid so that such
funds shall be forthwith available to holders of shares of
Class I Preferred Stock to be redeemed upon surrender of
certificates evidencing such shares, then, notwithstanding
that the time fixed for such redemption as aforesaid may not
yet have occurred or the certificates evidencing shares to
be redeemed may not have been surrendered for cancellation,
nevertheless all shares to be redeemed shall be deemed no
longer to be outstanding for any purpose, and all voting and
other rights with respect to such shares shall thereupon
cease and terminate, excepting only the right of the holders
of the certificates for such shares to receive, out of funds
so deposited in trust, the redemption funds, without
interest, to which they are entitled, and the right to
exercise any privilege of conversion not theretofore
expiring, the Corporation to be entitled to the return of
any funds deposited for redemption of shares converted
pursuant to such privilege. Any interest accrued on funds
so deposited shall be paid to the Corporation from time to
time. In case the holder of shares of Class I Preferred
Stock which shall have been called for redemption shall not,
within six years after the redemption date, claim the amount
deposited with respect to the redemption of such shares, the
bank or trust company in which such deposit was made shall
upon demand pay over to the Corporation such unclaimed
amount and thereupon such bank or trust company shall be
relieved of all responsibility in respect thereof to such
holder.
(E) Repurchases; Limitations on Reacquisitions. Subject to
applicable law and the provisions of this Division I, the
Corporation may from time to time purchase or otherwise
acquire outstanding shares of Class I Preferred Stock at a
price per share not exceeding the amount at the time payable
in the event of redemption thereof otherwise than through
the operation of the applicable sinking fund, if any.
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No shares of Class I Preferred Stock shall be purchased,
redeemed, retired or otherwise acquired for a valuable
consideration if all accumulations of Dividends on the
shares of Class I Preferred Stock of all series thereof, and
on the shares of Parity Stock of all series thereof, for all
past quarterly Dividend periods or portions thereof shall
not have been paid, or declared and a sum sufficient for the
payment thereof set apart, or if the Corporation shall be in
default or deficient under any requirement of a sinking fund
established with respect to outstanding shares of Class I
Preferred Stock of any series thereof and with respect to
outstanding shares of Parity Stock of any series thereof,
for any period then elapsed.
(F) Restrictions on Certain Corporation Action.
(1) The Corporation shall not, without the consent (given
by vote at an annual meeting or a special meeting
called for that purpose) of the holders of at least a
majority of the total number of shares of Class I
Preferred Stock then outstanding, issue any bonds,
notes, debentures or other securities representing
indebtedness, or assume any such indebtedness, other
than:
(a) indebtedness with a maturity not more than 12
months from date of issue (short-term
indebtedness) up to an aggregate at any time
outstanding which does not exceed 10% of the sum
of items (y) and (z) below,
(b) indebtedness issued for purposes of the refunding,
reacquisition, redemption or other retirement of
any outstanding indebtedness theretofore issued or
assumed by the Corporation with a maturity date
beyond 12 months from date of issue of the
indebtedness being refunded, reacquired, redeemed
or retired, or
(c) indebtedness issued for purposes of the
reacquisition, redemption or other retirement of
all or any part of outstanding shares of Class I
Preferred Stock, Parity Stock or Senior Shares,
if, after giving effect to such issue or assumption,
the total principal amount of all bonds, notes,
debentures or other securities representing
indebtedness issued or assumed by the Corporation to be
outstanding (but excluding short-term indebtedness, as
above defined, in an amount not exceeding 10% of the
sum of items (y) and (z) below) would exceed 65% of the
aggregate of
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(y) the total principal amount of all bonds, notes,
debentures or other securities representing
indebtedness maturing in more than 12 months from
date of issue issued or assumed by the Corporation
and then to be outstanding, and
(z) the capital and surplus of the Corporation as then
to be stated on the books of account of the
Corporation.
(2) The Corporation shall not, without the consent (given
by vote at an annual meeting or a special meeting
called for that purpose) of the holders of at least
two-thirds of the total number of shares of Class I
Preferred then outstanding, issue, sell or otherwise
dispose of any additional shares of Class I Preferred
Stock, or any shares of Parity Stock or Senior Shares,
unless the gross income of the Corporation determined
in accordance with such system of accounts as may be
prescribed by governmental authorities having
jurisdiction in the premises, or, in the absence
thereof, in accordance with sound accounting practices
(but in any event after deducting the amount charged by
the Corporation on its books for depreciation expense
and all taxes), for a period of 12 consecutive calendar
months within the 15 calendar months immediately
preceding the issuance, sale or disposition of such
shares available for the payment of interest shall have
been at least 1 1/2 times the sum of (a) the annual
interest charges on all interest-bearing indebtedness
of the Corporation and (b) the annual Dividend
requirement on all outstanding shares of Class I
Preferred Stock, Parity Stock and Senior Shares,
including the shares proposed to be issued; provided
that there shall be excluded from the foregoing
computation interest charges on all indebtedness and
Dividends on all shares which are to be retired in
connection with the issue of such additional shares of
Class I Preferred Stock, Parity Stock or Senior Shares.
In determining such gross income, the Board of
Directors shall make such adjustment, by way of
increase or decrease in such gross income, as shall, in
its opinion, be necessary to give effect, for the
entire 12 months for which such gross income is
determined, to any acquisition or disposition of
property the income from which can be separately
ascertained.
(G) Preemptive Rights. No holder of shares of Class I Preferred
Stock shall have any preemptive right to subscribe for or
acquire additional shares of the Corporation of the same or
any other class, whether such shares are now or hereafter
authorized.
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(H) Cancellation. Except as may otherwise be provided in this
Division I, or in any articles of amendment to the Articles
of Incorporation providing for the issue of any particular
series of Class I Preferred Stock, shares of Class I
Preferred Stock redeemed or otherwise retired by the
Corporation may be reissued in the same manner as authorized
but unissued shares of Class I Preferred Stock undesignated
as to series until and unless cancelled pursuant to
applicable law.
(I) Definitions. In this Division I and in any articles of
amendment to the Articles of Incorporation adopted by the
Board of Directors establishing a series of shares of Class
I Preferred Stock and fixing the designation and terms
thereof, the meanings below assigned shall control:
"Senior Shares" shall mean shares of any class ranking prior
to the Class I Preferred Stock as to Dividends or upon the
Liquidation of the Corporation. No Parity Stock shall
constitute Senior Shares.
"Parity Stock" shall mean shares of any class ranking on a
parity with, but not prior to, the Class I Preferred Stock
as to Dividends or upon the Liquidation of the Corporation
and shall include all shares of Class M Preferred Stock.
"Junior Shares" shall mean shares of any class ranking
subordinate to the Class I Preferred Stock both as to
Dividends and upon the Liquidation of the Corporation,
including all shares of Preference Stock and Common Stock.
"Preferential Dividends" accrued and unpaid on a share of
Class I Preferred Stock to any particular date shall mean an
amount per share at the annual Dividend rate applicable to
such share for the period beginning with the date from and
including which Dividends on such share are cumulative and
concluding with the day prior to such particular date, less
the aggregate of all Dividends paid with respect to such
share during such period.
(J) Voting Rights.
(1) Except to the extent required by law or as permitted by
this Division I, the holders of shares of Class I
Preferred Stock shall have no voting rights.
(2) If at any time Dividends on any shares of Class I
Preferred Stock or Class M Preferred Stock shall be
accrued and unpaid in an amount equivalent to six or
more full quarterly Dividends, the holders of all
shares of Class I Preferred Stock and Class M Preferred
Stock, voting together as a single class for such
purpose, shall be entitled until, but only until, all
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Dividends accrued and unpaid on all shares of Class I
Preferred Stock and Class M Preferred Stock shall have
been paid (or deposited in trust for payment on or
before the next succeeding Dividend Payment Date with
respect to shares of Class I Preferred Stock and Merger
Series shares of Class M Preferred Stock, and on or
before the next succeeding date or dates upon which
Dividends are payable on other series of Class M
Preferred Stock), to elect two (2) Directors of the
Corporation.
(3) While the holders of the shares of Class I Preferred
Stock and Class M Preferred Stock remain entitled to
elect two Directors of the Corporation, the payment of
Dividends on Class I Preferred Stock and Class M
Preferred Stock, including accrued and unpaid
Dividends, shall not be unreasonably withheld if the
financial condition of the Corporation permits payment
thereof.
(4) The right of the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock under this
Section (J) to elect two Directors of the Corporation
may be exercised at any annual meeting of shareholders
or, within the limitations of this Section (J), at a
special meeting of shareholders held for such purpose;
whenever such right shall have become vested, upon
request signed by any holder of record of shares of
Class I Preferred Stock or Class M Preferred Stock and
delivered to the Corporation at its principal office
not less than ninety (90) days prior to the date for
the annual meeting next following the date of such
vesting, the President of the Corporation shall call a
special meeting of shareholders, to be held within
sixty (60) days after the receipt of such request, for
the purpose of electing a new Board of Directors, of
which two shall, subject to the provisions of this
Section (J), be elected by a vote of the holders of the
shares of Class I Preferred Stock and Class M Preferred
Stock, voting together as a single class, to serve
until the next annual meeting or until their successors
shall be elected and shall qualify.
(5) No such special meeting shall be required to be held
within 120 days after such a prior special meeting, and
the term of office of each Director of the Corporation
shall terminate at the time of any such special meeting
or adjournment thereof, notwithstanding that the term
for which such Director had been elected shall not then
have expired, and provided that the successor of such
Director is duly elected and qualified.
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(6) In the event that at any special meeting at which the
holders of the shares of Class I Preferred Stock and
Class M Preferred Stock shall be entitled to elect two
Directors of the Corporation, a quorum of the holders
of the shares of Class I Preferred Stock and Class M
Preferred Stock shall not be present in person or by
proxy, the holders of Common Stock, if a quorum thereof
be present in person or by proxy, shall temporarily
elect the Directors of the Corporation, which the
holders of the shares of Class I Preferred Stock and
Class M Preferred Stock were entitled but failed to
elect, such Directors to be designated as having been
so elected and their term of office to expire at such
time thereafter as their successors shall be elected by
the holders of the shares of Class I Preferred Stock
and Class M Preferred Stock as provided in this Section
(J).
(7) Whenever the holders of the shares of Class I Preferred
Stock and Class M Preferred Stock shall be entitled to
elect two Directors, any holder of record of shares of
Class I Preferred Stock or Class M Preferred Stock
shall have the right, during regular business hours, in
person or by a duly authorized representative, to
examine the Corporation stock records of the Class I
Preferred Stock and Class M Preferred Stock for the
purpose of communicating with other holders of shares
of Class I Preferred Stock and Class M Preferred Stock
with respect to the exercise of such right of election,
and to make a list of such holders.
(8) Whenever, under the terms of this Section (J), the
holders of the shares of Class I Preferred Stock and
Class M Preferred Stock shall be divested of the right
to elect two Directors, upon request signed by any
holder of record of Common Stock and delivered to the
Corporation at its principal office not less than
ninety (90) days prior to the date for the annual
meeting next following the date of such divesting, the
President of the Corporation shall call a special
meeting of the holders of Common Stock to be held
within sixty (60) days after the receipt of such
request for the purpose of electing a new Board of
Directors to serve until the next annual meeting or
until their respective successors shall be elected and
shall qualify.
(9) The term of office of each Director of the Corporation
shall terminate at the time of any such special meeting
or adjournment thereof at which a quorum of holders of
Common Stock shall be present in person or by proxy,
notwithstanding that the term for which such Director
had been elected shall not then have expired, and
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provided that the successor to such Director is duly
elected and qualified.
(10) If, during any interval between annual meetings of
shareholders for the election of Directors and while
the holders of the shares of Class I Preferred Stock
and Class M Preferred Stock shall be entitled to elect
two Directors, a Director in office who has been
elected by the holders of shares of Class I Preferred
Stock and Class M Preferred Stock, shall, by reason of
resignation, death or removal, cease to be a Director,
(i) the vacancy or vacancies shall be filled by vote of
the remaining Director then in office who was elected
by the holders of shares of Class I Preferred Stock and
Class M Preferred Stock or who succeeded to a Director
so elected, and (ii) if any vacancy which occurred more
than six months prior to the date of the next ensuing
annual meeting is not so filled within forty (40) days
after the occurrence thereof, the President of the
Corporation shall call a special meeting of the holders
of the shares of Class I Preferred Stock and Class M
Preferred Stock and such vacancy shall be filled at
such special meeting.
(11) A Director elected by the holders of the shares of
Class I Preferred Stock and Class M Preferred Stock may
be removed from office only by vote of the holders of a
majority of the votes of the outstanding shares of
Class I Preferred Stock and Class M Preferred Stock,
voting together as a single class.
(12) At any annual or special meeting of the shareholders
held for any purpose, including the purpose of electing
Directors when the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock shall be
entitled to elect two Directors, the presence in person
or by proxy of holders of a majority of the votes of
the outstanding shares of Class I Preferred Stock and
Class M Preferred Stock shall be required to constitute
a quorum of the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock.
(13) At any meeting of shareholders at which the holders of
the shares of Class I Preferred Stock and Class M
Preferred Stock are required to vote by law or are
permitted to vote by any articles of amendment to the
Articles of Incorporation, each holder of shares of
Class I Preferred Stock shall have one vote for each
such share and each holder of shares of each series of
Class M Preferred Stock shall have the number or
fraction of votes set forth for each such share in the
articles of amendment to the Articles of Incorporation
in which the terms of such series are determined, in
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each case standing in the name of such holder on the
books of the Corporation on the record date fixed for
such purpose, or, if no record date is fixed, on the
date on which such vote is taken.
(14) The holders of shares of Class I Preferred Stock shall
not be entitled to receive notice of any meeting at
which they are not entitled to vote.
(K) $4.36 Cumulative Class I Preferred Stock.
(1) Designation of Series and Number of Shares to be
Issuable Therein. A series of Class I Preferred Stock
is designated $4.36 Cumulative Class I Preferred Stock.
Such series is a closed series consisting of 60,000
shares of Class I Preferred Stock.
(2) Rate of Dividend. The rate per annum of Dividends on
the $4.36 Cumulative Class I Preferred Stock is $4.36
per share. The first Dividend payable on shares of
$4.36 Cumulative Class I Preferred Stock, if any,
issued between quarterly Dividend Payment Dates shall
be an amount per share equal to that proportion of
$1.09 which (a) the period, beginning with the date of
issue of such shares and ending with the last day of
the quarterly Dividend period in which such issue
occurs, bears to (b) the full quarterly Dividend
period.
(3) Redemption Prices. The redemption price of the $4.36
Cumulative Class I Preferred Stock is $102 1/8 per
share plus the amount of accrued and unpaid Dividends,
if any, thereon to the redemption date.
(4) Voluntary Liquidation Price. The amount payable on
each share of $4.36 Cumulative Class I Preferred Stock
in the event of voluntary Liquidation of the
Corporation is an amount equal to the redemption price
thereof applicable at the date fixed for payment, but
no more.
(5) No Sinking Fund. There is no sinking fund for the
purchase or redemption of shares of $4.36 Cumulative
Class I Preferred Stock.
(6) No Conversion Privilege. Shares of $4.36 Cumulative
Class I Preferred Stock are not convertible into other
shares or securities of the Corporation.
(7) Merger Series. The $4.36 Cumulative Class I Preferred
Stock is a Merger Series (as defined below) and on the
Effective Date (as defined below) of the Merger (as
defined below) one share of $4.36 Cumulative Class I
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Preferred Stock shall be issued upon the conversion in
the Merger of a Preferred Share, par value $100 per
share, of Iowa-Illinois of the series designated $4.36
Cumulative Preferred Shares. The three series of Class
I Preferred Stock, eight series of Class M Preferred
Stock and two series of Preference Stock created
pursuant to these Articles of Amendment are
collectively referred to herein as the "Merger Series",
which are to be issued on the date on which the merger
(the "Merger") of Midwest Resources Inc., an Iowa
corporation, Midwest Power Systems Inc., an Iowa
corporation, and Iowa-Illinois Gas and Electric
Company, an Illinois corporation, with and into the
Corporation becomes effective ("Effective Date of the
Merger").
(L) $4.22 Cumulative Class I Preferred Stock.
(1) Designation of Series and Number of Shares to Be
Issuable Therein. A series of Class I Preferred Stock
is designated $4.22 Cumulative Class I Preferred Stock.
Such series is a closed series consisting of 40,000
shares of Class I Preferred Stock.
(2) Rate of Dividend. The rate per annum of Dividends on
the $4.22 Cumulative Class I Preferred Stock is $4.22
per share. The first Dividend payable on shares of
$4.22 Cumulative Class I Preferred Stock, if any,
issued between quarterly Dividend Payment Dates shall
be an amount per share equal to that proportion of
$1.06 which (a) the period, beginning with the date of
issue of such shares and ending with the last day of
the quarterly Dividend period in which such issue
occurs, bears to (b) the full quarterly Dividend
period.
(3) Redemption Prices. The redemption price of the $4.22
Cumulative Class I Preferred Stock is $100 per share
plus the amount of accrued and unpaid Dividends, if
any, thereon to the redemption date.
(4) Voluntary Liquidation Price. The amount payable on
each share of $4.22 Cumulative Class I Preferred Stock
in the event of voluntary Liquidation of the
Corporation is an amount equal to the redemption price
thereof applicable at the date fixed for payment, but
no more.
(5) No Sinking Fund. There is no sinking fund for the
purchase or redemption of shares of $4.22 Cumulative
Class I Preferred Stock.
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(6) No Conversion Privilege. Shares of $4.22 Cumulative
Class I Preferred Stock are not convertible into other
shares or securities of the Corporation.
(7) Merger Series. The $4.22 Cumulative Class I Preferred
Stock is a Merger Series and on the Effective Date of
the Merger one share of $4.22 Cumulative Class I
Preferred Stock shall be issued upon the conversion in
the Merger of a Preferred Share, par value $100 per
share, of Iowa-Illinois of the series designated $4.22
Cumulative Preferred Shares.
(M) $7.50 Cumulative Class I Preferred Stock.
(1) Designation of Series and Number of Shares to Be
Issuable Therein. A series of Class I Preferred Stock
is designated $7.50 Cumulative Class I Preferred Stock.
Such series is a closed series consisting of 100,000
shares of the Class I Preferred Stock.
(2) Rate of Dividend. The rate per annum of Dividends on
the $7.50 Cumulative Class I Preferred Stock is $7.50
per share. The first Dividend payable on shares of
$7.50 Cumulative Class I Preferred Stock, if any,
issued between quarterly Dividend Payment Dates shall
be an amount per share which is the same proportion of
$1.875 that (a) the period beginning with the date of
issue of such shares and ending with the last day of
the quarterly Dividend period in which such issue
occurs is of (b) the full quarterly Dividend period.
(3) Redemption Prices. The redemption price of the $7.50
Cumulative Class I Preferred Stock is $101.88 per share
plus the amount of accrued and unpaid Dividends
thereon, if any, to the redemption date.
(4) Voluntary Liquidation Price. The amount payable on
each share of $7.50 Cumulative Class I Preferred Stock
in the event of voluntary Liquidation of the
Corporation is an amount equal to the redemption price
thereof applicable at the date fixed for payment, but
no more.
(5) No Sinking Fund. There is no sinking fund for the
purchase or redemption of shares of $7.50 Cumulative
Class I Preferred Stock.
(6) No Conversion Privilege. Shares of $7.50 Cumulative
Class I Preferred Stock are not convertible into other
shares or securities of the Corporation.
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(7) Merger Series. The $7.50 Cumulative Class I Preferred
Stock is a Merger Series and on the Effective Date of
the Merger one share of $7.50 Cumulative Class I
Preferred Stock shall be issued upon the conversion in
the Merger of a Preferred Share, par value $100 per
share, of Iowa-Illinois of the series designated $7.50
Cumulative Preferred Shares.
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DIVISION II
Provisions Relating to Class M Preferred Stock
(A) Designations. Each Merger Series of Class M Preferred Stock
is given one of the following distinguishing designations:
$1.7375 Series
$3.30 Series
$3.75 Series
$3.90 Series
$4.20 Series
$4.35 Series
$4.40 Series
$4.80 Series
(B) Number of Shares. Each Merger Series of Class M Preferred
Stock shall consist of the following number of shares of Class M
Preferred Stock:
Series Number of Shares
$1.7375 Series 2,400,000
$3.30 Series 49,632
$3.75 Series 38,320
$3.90 Series 32,636
$4.20 Series 47,369
$4.35 Series 49,950
$4.40 Series 50,000
$4.80 Series 49,898
(C) Distributions ("Dividends").
(1) The holders of the shares of each Merger Series of
Class M Preferred Stock in preference to the holders of
Common Stock and the holders of any other shares of the
Corporation which rank junior to the Class M Preferred
Stock and Class I Preferred Stock, shall be entitled to
receive, but only when and as declared by the Board of
Directors, out of any assets legally available
therefor, Dividends in lawful money of the United
States of America, in the amount per annum set forth in
the provisions of these Articles of Amendment creating
such Merger Series of Class M Preferred Stock, and no
more.
(2) Dividends on the Merger Series shares of Class M
Preferred Stock shall be payable quarterly on the first
day of each of the months of February, May, August and
November ("Dividend Payment Date") with respect to the
quarterly Dividend period ending on the date preceding
each such Dividend Payment Date, to shareholders of
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record as of a date to be fixed by the Board of
Directors, not exceeding thirty (30) days and not less
than ten (10) days preceding such Dividend Payment
Dates; provided, however, that the first Dividend
payable on the Merger Series shares of Class M
Preferred Stock shall be paid as follows:
(a) if a regular Dividend payment date for
the shares of Preferred Stock, no par value, of
Midwest Power which were converted into shares of
such Merger Series in the merger of Midwest
Resources Inc., Midwest Power and Iowa-Illinois
with and into the Corporation ("Midwest Power
Payment Date"), occurs after the Effective Date of
the Merger but before the first Dividend Payment
Date after the Effective Date of the Merger
("First Dividend Payment Date"), then
(i) a Dividend shall be paid on the
shares of such Merger Series on the Midwest
Power Payment Date in the regular quarterly
amount, and
(ii) a Dividend shall be paid on the
shares of such Merger Series on the First
Dividend Payment Date, but only in the amount
obtained by multiplying the regular quarterly
amount of such Dividend by a fraction (A) the
numerator of which is the number of days in
the period commencing on the Midwest Power
Payment Date and ending on and including the
day prior to the First Dividend Payment Date,
and (B) the denominator of which is the
number of days in the period commencing on
the Dividend Payment Date preceding the
Effective Date of the Merger and ending on
and including the day prior to the First
Dividend Payment Date; or
(b) if the First Dividend Payment Date
occurs before a Midwest Power Payment Date, a
Dividend shall be paid on the shares of such
Merger Series on the First Dividend Payment Date,
but only in the amount obtained by multiplying the
regular quarterly amount of such Dividend by a
fraction (i) the numerator of which is the number
of days in the period commencing on the Midwest
Power Payment Date preceding the Effective Date of
the Merger and ending on and including the day
prior to the First Dividend Payment Date, and (ii)
the denominator of which is the number of days in
the period commencing on the Dividend Payment Date
preceding the Effective Date of the Merger and
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ending on and including the day prior to the First
Dividend Payment Date.
(3) Except as provided in Section (C)(2) of this Division
II, Dividends on each Merger Series share of Class M
Preferred Stock shall be cumulative from the Dividend
Payment Date preceding the Effective Date of the
Merger. Accumulations of Dividends shall not bear
interest.
(4) Except as provided in Section (C)(2) of this Division
II, no Dividend shall be paid upon, or declared and set
apart for, any Merger Series share of Class M Preferred
Stock for any quarterly period or portion thereof
unless (i) at the same time a like proportionate
Dividend for the same quarterly period or portion
thereof shall be paid upon, or declared and set aside,
for all shares of Class I Preferred Stock and all
Merger Series shares of Class M Preferred Stock and all
other shares of Class M Preferred Stock on which
Dividends are payable on a Dividend Payment Date and
(ii) no Dividends on any other shares of Class M
Preferred Stock are accrued and unpaid.
(5) So long as any shares of Class I Preferred Stock and
Merger Series shares of Class M Preferred Stock are
outstanding, the Corporation shall not (i) pay or
declare or set aside any Dividend or other distribution
on any shares of Common Stock or on any other junior
shares of the Corporation which rank below the Class I
Preferred Stock and Class M Preferred Stock with
respect to any assets, Dividends or other distributions
or upon Liquidation or (ii) purchase, redeem or
otherwise acquire for value any shares of Common Stock
or such junior shares, in each case unless and until
full Dividends have been declared and paid upon or set
apart for payment on all shares of Class I Preferred
Stock and all shares of Class M Preferred Stock, with
respect to all Dividend periods and the Dividend period
which includes the date of such Dividend or
distribution on Common Stock or such junior shares;
provided, however, that the foregoing terms of this
Section (C)(5) shall not apply to the declaration and
payment of Dividends or other distributions on any
shares of Common Stock or such junior shares if payable
solely in shares of Common Stock or such junior shares,
nor to the acquisition of shares of Common Stock or
such junior shares in exchange for, or through the
application of the proceeds of the sale of, any shares
of Common Stock or such junior shares.
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(D) Redemption.
(1) Subject to the limitations set forth in Section (E) of
this Division II, the outstanding shares of each Merger
Series of Class M Preferred Stock may be redeemed by
the Corporation, at its option, by action of its Board
of Directors, as a whole at any time or in part from
time to time, by paying in cash on a redemption date
specified by the Board of Directors, the following
redemption prices, in each case plus an amount equal to
accrued and unpaid Dividends thereon to such redemption
date:
$1.7375 Series:
$26.7375 per share through November 30,
1994
$26.3900 per share on December 1, 1994
through November 30, 1995
$26.0425 per share on December 1, 1995
through November 30, 1996
$25.6950 per share on December 1, 1996
through November 30, 1997
$25.3475 per share on December 1, 1997
through November 30, 1998
$25.0000 per share on or after
December 1, 1998
$3.30 Series:
$101.50 per share
$3.75 Series:
$102.75 per share
$3.90 Series:
$105.00 per share
$4.20 Series:
$103.439 per share
$4.35 Series:
$102.00 per share
$4.40 Series:
$101.50 per share
$4.80 Series:
$102.70 per share
provided, however, that prior to December 1, 1998, no shares of
the $1.7375 Series of Class M Preferred Stock may be redeemed
through a refunding, directly or indirectly, by or in
anticipation of the incurring of any debt which has an interest
cost, or the issuance of stock ranking equally with or prior to
the $1.7375 Series of Class M Preferred Stock as to Dividends or
assets which has a Dividend cost to the Corporation (computed in
accordance with generally accepted financial practice), of less
than 7.15% per annum.
(2) "Accrued and unpaid Dividends" as used in this
Amendment with respect to any Merger Series share of
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Class M Preferred Stock means the amount, if any, by
which the applicable amount of Dividend per annum from
the date after which Dividends on such share become
cumulative to the date in question, exceeds the
Dividends actually paid or declared and set aside for
payment thereon.
(3) Notice of any proposed redemption of any Merger Series
shares of Class M Preferred Stock shall be given by the
Corporation by mailing a copy of such notice not more
than sixty (60) nor less than thirty (30) days prior to
the date fixed for such redemption to the holders of
record of such shares to be redeemed, at their
respective addresses then appearing on the books of the
Corporation; but no failure to mail such notice or any
defect therein, or in the mailing thereof, shall affect
the validity of the proceedings for the redemption of
any Merger Series shares of Class M Preferred Stock so
to be redeemed.
(4) In case of redemption of only a part of the shares of
any Merger Series of Class M Preferred Stock at the
time outstanding, the shares of such Merger Series of
Class M Preferred Stock to be redeemed shall be
selected by lot in such manner as the Board of
Directors may determine.
(5) On the redemption date specified in the notice of such
redemption the Corporation shall, and at any time
within sixty (60) days prior to such redemption date
may, deposit in trust, for the account of the holders
of the Merger Series shares of Class M Preferred Stock
to be redeemed, funds necessary for such redemption
with a bank or trust company in good standing,
organized under the laws of the United States of
America or of the State of Iowa, doing business in the
City of Des Moines, Iowa, having combined capital,
surplus and undivided profits of at least $2,500,000
and designated in such notice of redemption.
(6) Notice having been given and funds necessary for such
redemption having been deposited, all as provided in
this Section (D), all Merger Series shares of Class M
Preferred Stock with respect to the redemption of which
such notice shall be given and deposit made, shall
thenceforth, whether or not the date fixed for such
redemption shall have yet occurred, or the certificates
for such shares shall have been surrendered for
cancellation, be deemed no longer to be outstanding for
any purpose, and all rights with respect to such shares
shall thereupon cease and terminate except only the
right of the holders of the certificates for such
shares to receive, out of the funds so deposited in
A-35
trust, upon or after the redemption date (unless an
earlier date is fixed by the Board of Directors of the
Corporation), the redemption funds, without interest,
to which they are entitled upon endorsement, if
required, and surrender of their certificates for such
shares.
(7) At the expiration of six (6) years after the redemption
date such trust shall terminate and any such moneys
then remaining on deposit with such bank or trust
company which are unclaimed by the holders of the
certificates for the Merger Series shares of Class M
Preferred Stock which have been so redeemed, plus
interest thereon, if any, shall be paid by such bank or
trust company to the Corporation, free of trust, and
thereafter the holders of the certificates for such
shares shall have no claim against such bank or trust
company but only claims as unsecured creditors against
the Corporation for the amount payable upon the
redemption thereof, without interest.
(8) Any interest on or other accretions to funds deposited
with such bank or trust company pursuant to this
Section (D) shall belong to the Corporation.
(E) Repurchase.
(1) The Corporation may from time to time purchase or
otherwise acquire Merger Series shares of Class M
Preferred Stock at a price not exceeding the amount at
the time payable in the event of redemption thereof
otherwise than through the operation of the applicable
sinking fund, if any.
(2) If and so long as the Corporation shall be in default
in the payment of any quarterly Dividend on any shares
of Class I Preferred Stock or Merger Series shares of
Class M Preferred Stock, or shall be in default in the
payment of funds into or the setting aside of funds for
any sinking fund created for any shares of Class I
Preferred Stock or Merger Series shares of Class M
Preferred Stock, the Corporation shall not (other than
by the use of unapplied funds, if any, paid into or set
aside for a sinking fund or funds prior to such
default):
(a) redeem any shares of Class I Preferred Stock
or any Merger Series shares of Class M Preferred Stock,
unless all shares of Class I Preferred Stock and all
Merger Series shares of Class M Preferred Stock are
redeemed, or
A-36
(b) purchase or otherwise acquire for a valuable
consideration any shares of Class I Preferred Stock or
Merger Series shares of Class M Preferred Stock, except
pursuant to offers of sale made by the holders of
shares of Class I Preferred Stock and Merger Series
shares of Class M Preferred Stock in response to an
invitation for tenders given by mail by the Corporation
simultaneously to the holders of record of all shares
of Class I Preferred Stock and all Merger Series shares
of Class M Preferred Stock then outstanding, at their
respective addresses then appearing on the books of the
Corporation.
(F) Preference on Liquidation.
(1) Before any distribution of any assets of the
Corporation shall be made to the holders of any Common
Stock or any other junior shares of the Corporation
which rank below the Class I Preferred Stock and Class
M Preferred Stock with respect to any assets, Dividends
or other distributions:
(a) in the event of any liquidation, dissolution or
winding up ("Liquidation") of the Corporation which is
voluntary:
(i) the holders of the shares of the $1.7375
Series, $3.30 Series, $3.75 Series, $4.35 Series, $4.40
Series and $4.80 Series shall be entitled to receive an
amount per share equal to the amount which would then
be payable upon such share in the event of redemption
thereof in accordance with Section (D) of this Division
II, and no more; and
(ii) the holders of the shares of the $3.90
Series and $4.20 Series shall be entitled to receive
the amount of one hundred dollars ($100) per share plus
accrued and unpaid Dividends to the date of payment of
such amount, and no more.
(b) in the event of any Liquidation of the Corporation
which is involuntary:
(i) the holders of the shares of the $3.30
Series, $3.75 Series, $3.90 Series, $4.20 Series, $4.35
series, $4.40 Series and $4.80 Series of Class M
Preferred Stock shall be entitled to receive the amount
of one hundred dollars ($100) per share plus accrued
and unpaid Dividends to the date of payment of such
amount, and no more; and
(ii) the holders of the shares of the $1.7375
Series of Class M Preferred Stock shall be entitled to
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receive the amount of twenty-five dollars ($25.00) per
share plus accrued and unpaid Dividends to the date of
payment of such amount, and no more.
(2) If upon any Liquidation the assets distributable among
the holders of the shares of Class I Preferred Stock
and Class M Preferred Stock shall be insufficient to
permit the payment of the full preferential amounts to
which they shall be entitled, then the entire assets of
the Corporation to be distributed shall be distributed
among the holders of the shares of Class I Preferred
Stock and Class M Preferred Stock then outstanding
ratably in proportion to the amounts to which such
holders are respectively entitled.
(3) If upon any Liquidation the holders of the shares of
Class I Preferred Stock and Class M Preferred Stock
shall receive the full preferential amounts to which
they shall be entitled, the remaining assets and funds
of the Corporation shall be distributed among the
holders of the shares of Common Stock and of any other
junior shares of the Corporation which rank below the
Class I Preferred Stock and Class M Preferred Stock
with respect to any assets, or Dividends or other
distributions, according to their respective rights and
preferences and according to their respective shares.
(4) Neither a consolidation nor a merger of the
Corporation, nor a sale or transfer of substantially
all its assets as an entirety, nor a redemption or a
purchase or other acquisition by the Corporation of
less than all of its shares of any class at the time
outstanding, shall be regarded as a Liquidation within
the meaning of this Section (F).
(G) Voting Rights.
(1) Except to the extent required by law or as permitted by
this Section (G), the holders of Merger Series shares
of Class M Preferred Stock shall have no voting rights.
(2) If at any time Dividends on any Class I Preferred Stock
or Class M Preferred Stock shall be accrued and unpaid
in an amount equivalent to six or more full quarterly
Dividends, the holders of all shares of Class I
Preferred Stock and Class M Preferred Stock, voting
together as a single class for such purpose, shall be
entitled until, but only until, all Dividends accrued
and unpaid on all shares of Class I Preferred Stock and
Class M Preferred Stock shall have been paid (or
deposited in trust for payment on or before the next
succeeding Dividend Payment Date with respect to shares
of Class I Preferred Stock and Merger Series shares of
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Class M Preferred Stock, and on or before the next
succeeding date or dates upon which Dividends are
payable on other series of Class M Preferred Stock), to
elect two (2) Directors of the Corporation.
(3) While the holders of the shares of Class I Preferred
Stock and Class M Preferred Stock remain entitled to
elect two Directors of the Corporation, the payment of
Dividends on Class I Preferred Stock and Class M
Preferred Stock, including accrued and unpaid
Dividends, shall not be unreasonably withheld if the
financial condition of the Corporation permits payment
thereof.
(4) The right of the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock under this
Section (G) to elect two Directors of the Corporation
may be exercised at any annual meeting of shareholders
or, within the limitations of this Section (G), at a
special meeting of shareholders held for such purpose;
whenever such right shall have become vested, upon
request signed by any holder of record of shares of
Class I Preferred Stock or Class M Preferred Stock and
delivered to the Corporation at its principal office
not less than ninety (90) days prior to the date for
the annual meeting next following the date of such
vesting, the President of the Corporation shall call a
special meeting of shareholders, to be held within
sixty (60) days after the receipt of such request, for
the purpose of electing a new Board of Directors, of
which two shall, subject to the provisions of this
Section (G), be elected by a vote of the holders of the
Class I Preferred Stock and Class M Preferred Stock,
voting together as a single class, to serve until the
next annual meeting or until their successors shall be
elected and shall qualify.
(5) No such special meeting shall be required to be held
within 120 days after such a prior special meeting, and
the term of office of each Director of the Corporation
shall terminate at the time of any such special meeting
or adjournment thereof, notwithstanding that the term
for which such Director had been elected shall not then
have expired, and provided that the successor of such
Director is duly elected and qualified.
(6) In the event that at any special meeting at which the
holders of the shares of Class I Preferred Stock and
Class M Preferred Stock shall be entitled to elect two
Directors of the Corporation, a quorum of the holders
of the shares of Class I Preferred Stock and Class M
Preferred Stock shall not be present in person or by
proxy, the holders of Common Stock, if a quorum thereof
A-39
be present in person or by proxy, shall temporarily
elect the Directors of the Corporation, which holders
of the shares of Class I Preferred Stock and Class M
Preferred Stock were entitled but failed to elect, such
Directors to be designated as having been so elected
and their term of office to expire at such time
thereafter as their successors shall be elected by
holders of the shares of Class I Preferred Stock and
Class M Preferred Stock as provided in this Section
(G).
(7) Whenever the holders of the shares of Class I Preferred
Stock and Class M Preferred Stock shall be entitled to
elect two Directors, any holder of record of a share of
Class I Preferred Stock or Class M Preferred Stock
shall have the right, during regular business hours, in
person or by a duly authorized representative, to
examine the Corporation stock records of the Class I
Preferred Stock and Class M Preferred Stock for the
purpose of communicating with other holders of Class I
Preferred Stock and Class M Preferred Stock with
respect to the exercise of such right of election, and
to make a list of such holders.
(8) Whenever, under the terms of this Section (G), the
holders of the shares of Class I Preferred Stock and
Class M Preferred Stock shall be divested of the right
to elect two Directors, upon request signed by any
holder of record of Common Stock and delivered to the
Corporation at its principal office not less than
ninety (90) days prior to the date for the annual
meeting next following the date of such divesting, the
President of the Corporation shall call a special
meeting of the holders of Common Stock to be held
within sixty (60) days after the receipt of such
request for the purpose of electing a new Board of
Directors to serve until the next annual meeting or
until their respective successors shall be elected and
shall qualify.
(9) The term of office of each Director of the Corporation
shall terminate at the time of any such special meeting
or adjournment thereof at which a quorum of holders of
Common Stock shall be present in person or by proxy,
notwithstanding that the term for which such Director
had been elected shall not then have expired, and
provided that the successor to such Director is duly
elected and qualified.
(10) If, during any interval between annual meetings of
shareholders for the election of Directors and while
the holders of the shares of Class I Preferred Stock
and Class M Preferred Stock shall be entitled to elect
A-40
two Directors, a Director in office who has been
elected by the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock, shall, by
reason of resignation, death or removal, cease to be a
Director, (a) the vacancy or vacancies shall be filled
by vote of the remaining Director then in office who
was elected by the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock or who
succeeded to a Director so elected, and (b) if any
vacancy which occurred more than six months prior to
the date of the next ensuing annual meeting is not so
filled within forty (40) days after the occurrence
thereof, the President of the Corporation shall call a
special meeting of the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock and such
vacancy shall be filled at such special meeting.
(11) A Director elected by holders of the shares of Class I
Preferred Stock and Class M Preferred Stock may be
removed from office only by vote of the holders of a
majority of the votes of the outstanding shares of
Class I Preferred Stock and Class M Preferred Stock.
(12) At any annual or special meeting of the shareholders
held for any purpose including the purpose of electing
Directors when the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock shall be
entitled to elect two Directors, the presence in person
or by proxy of holders of a majority of the votes of
the outstanding shares of Class I Preferred Stock and
Class M Preferred Stock shall be required to constitute
a quorum of the holders of the shares of Class I
Preferred Stock and Class M Preferred Stock.
(13) At any meeting of shareholders at which the holders of
the shares of Class I Preferred Stock and Class M
Preferred Stock are required to vote by law or are
permitted to vote by any articles of amendment to the
Articles of Incorporation, each holder of Merger Series
shares of Class M Preferred Stock shall have one vote
for each such Merger Series share except the holders of
$1.7375 Series Shares of Class M Preferred Stock which
shall have 1/4 vote for each such $1.7375 Series Share,
and each holder of shares of each other series of Class
M Preferred Stock shall have the number or fraction of
votes set forth for each such share in the articles of
amendment to the Articles of Incorporation in which the
terms of such series are determined, in each case
standing in the name of such holder on the books of the
Corporation on the record date fixed for such purpose,
or, if no record date is fixed, on the date on which
such vote is taken.
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(14) The holders of shares of Class M Preferred Stock shall
not be entitled to receive notice of any meeting at
which they are not entitled to vote.
(15) No Preemptive Rights. No holder of Merger Series
shares of Class M Preferred Stock as such shall have
any preemptive or preferential right to purchase or
subscribe for any shares of stock or rights or options
to purchase stock or any other securities of the
Corporation of any kind whatsoever whether now or
hereafter authorized.
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DIVISION III
Provisions Relating to Preference Stock
(A) Issue in Series. The shares of Preference Stock may be
divided into and issued in series, each of which shall be so
designated as to distinguish the shares thereof from the
shares of all other series and classes. Authority is hereby
expressly vested in the Board of Directors to divide any or
all of the shares of Preference Stock from time to time
authorized into series, to fix the designation of each such
series and, subject to the limitations stated herein or
imposed by law, to fix and determine the following as to
each such series:
(1) the distribution ("Dividend") rate or rates for the
shares of such series, or the facts ascertainable
outside the Articles of Incorporation of the
Corporation providing the basis for determining such
Dividend rate or rates, which may vary according to a
formula based upon market rates or rating agency
ratings for such series or other designated securities
and/or be determined periodically by auctions,
remarketing or other methods, but only if the manner in
which such facts are to operate upon such Dividend rate
or rates shall be clearly and expressly set forth in
Articles of Amendment to the Articles of Incorporation
adopted by the Board of Directors of the Corporation
for such purpose; the date or dates on which such
Dividends may be payable; and the date from which
Dividends on shares of such series shall be cumulative;
(2) the price or prices at which, and the terms and
conditions on which, such shares may be redeemed;
(3) the amount payable upon each of such shares in the
event of the voluntary or involuntary liquidation,
dissolution or winding up ("Liquidation") of the
Corporation;
(4) sinking fund provisions, if any, for the redemption or
purchase of such shares; and
(5) the terms and conditions on which such shares may be
converted into Common Stock, if such shares are to be
issued with such privilege of conversion.
(B) Dividends. Subject to the preferential rights of the
holders of Class I Preferred Stock and Class M Preferred
Stock with respect to the payment of Dividends, as set forth
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in Section (B) of Division I and in Section (C) of Division
II, the holders of shares of Preference Stock of each series
shall be entitled to receive, when and as declared by the
Board of Directors from assets legally available for the
payment thereof, Dividends at the rate fixed for such
series, and no more, payable quarterly on the first day of
each of the months of February, May, August and November in
each year (the "quarterly Dividend Payment Dates"), each
such quarterly Dividend payment to be in respect of the
quarterly Dividend period ending with the day next preceding
the date of such payment, except in the case of the first
Dividend payable on shares of any series issued between
quarterly Dividend Payment Dates, in which case such
Dividend shall be for the period beginning with the date of
issue of such shares or the next preceding quarterly
Dividend Payment Date for the Preference Stock, as
determined by the Board of Directors, and ending with the
day next preceding either the first or the second quarterly
Dividend Payment Date for the Preference Stock succeeding
the date of issue of such shares, as determined by the Board
of Directors. Notwithstanding the immediately preceding
sentence, if so provided in the articles of amendment to the
Articles of Incorporation establishing a particular series
of Preference Stock, as authorized by Section (A) of this
Division III, Dividends on the shares of such series may be
declared payable on such dates and with respect to such
periods as shall be set forth in such articles of amendment.
Except as may be otherwise provided in the articles of
amendment to the Articles of Incorporation establishing a
particular series of Preference Stock, such Dividends shall
accrue and be cumulative with respect to each share of each
series from and including the beginning date of the period
for which the first Dividend thereon was payable.
No Dividend shall be declared in full on the outstanding
shares of Preference Stock of any series ("Declaring
Series") in respect of any Dividend period for the Declaring
Series at the Dividend rate applicable to such Dividend
period unless prior thereto or concurrently therewith
Dividends in full shall likewise have been declared on all
then outstanding Preference Stock of each other series
("Other Series") in respect of each Dividend period for each
of the Other Series ending concurrently with, or prior to,
the last day of the Dividend period first above specified,
at the respective Dividend rates applicable from time to
time to each Other Series. Whenever less than full
Dividends shall be declared on the Declaring Series in
respect of any Dividend period for the Declaring Series at
the Dividend rate applicable to such Dividend period,
Dividends on the outstanding shares of Preference Stock of
all series shall be declared ratably in accordance with the
respective amounts which would be payable on all such
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outstanding shares of Preference Stock if all Dividends,
including accumulated Dividends, if any, were declared in
full on the declaration date. Accumulations of Dividends
shall not bear interest.
So long as any shares of Preference Stock are outstanding,
no Dividend shall be paid or declared, or other distribution
made, on Junior Shares, nor shall any Junior Shares be
purchased, redeemed, retired or otherwise acquired for a
consideration, unless Dividends on the outstanding
Preference Stock for the current and all past Dividend
periods shall have been paid in full, or declared and set
apart for payment, or if the Corporation shall be in default
or deficient under any requirement or a sinking fund
established with respect to outstanding shares of Preference
Stock of any series for any period then elapsed; provided,
however, that the restrictions of this Section (B) shall not
apply to the declaration and payment of Dividends on Junior
Shares if payable solely in Junior Shares, nor to the
acquisition of any Junior Shares through the application of
the proceeds of any Junior Shares sold at or about the time
of such acquisition, nor shall such restrictions prevent the
transfer of any amount from surplus to stated capital.
(C) Liquidation Preferences. In the event of Liquidation of the
Corporation, whether voluntary or involuntary, the holders
of Preference Stock of each series outstanding shall be
entitled to receive out of the assets of the Corporation,
before any payment or distribution shall be made to the
holders of any Junior Shares, such amount per share as shall
have been fixed by the Board of Directors as the voluntary
liquidation price or the involuntary liquidation price, as
the case may be, for the shares of such series; provided,
however, that no such payment to the holders of Preference
Stock shall be made until payment in full shall have been
made to the holders of all shares of Class I Preferred Stock
and Class M Preferred Stock, or moneys or other assets
sufficient for such payment shall have been set apart for
payment by the Corporation, separate and apart from its
other funds and assets for the account of such holders, in
accordance with the provisions of Section (C) of Division I
and Section (F) of Division II. If upon any such
Liquidation the assets of the Corporation available for
payment to shareholders are not sufficient to make payment
in full to the holders of Preference Stock as above
provided, payment shall be made to such holders ratably in
accordance with the number of shares held by them
respectively, and in case there shall then be outstanding
more than one series of Preference Stock, ratably in
accordance with the respective distributive amounts to which
such holders shall be entitled.
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Neither a consolidation nor merger of the Corporation with
or into any other corporation, nor a merger of any other
corporation into the Corporation, nor the purchase or
redemption of all or any part of the outstanding shares of
any class or classes of the Corporation, nor the sale or
transfer of the property and business of the Corporation as
or substantially as an entirety, shall be construed to be a
Liquidation of the Corporation within the meaning of the
foregoing provisions.
(D) Redemption and Repurchases. Subject to the limitations
stated in Section (B) of Division I, Section (E) of Division
II and in this Section (D), and except as may be otherwise
provided in the articles of amendment to the Articles of
Incorporation establishing a particular series, shares of
Preference Stock of any one or more series may be called for
redemption and redeemed, at the option of the Corporation,
in whole at any time or in part from time to time, by the
payment therefor in cash of the then applicable optional
redemption price or prices fixed by the Board of Directors
for the shares of such series, each redemption to be
effected upon notice the same as that provided in Section
(D) of Division I in respect of the redemption of Class I
Preferred Stock. All other provisions of said Section (D)
with respect to the method and effect of redemption of Class
I Preferred Stock shall be applicable to the redemption of
Preference Stock in the same manner and with the same force
and effect as though such provisions were set forth in full
in this Section (D).
Subject to applicable law, to the provisions of Section (B)
of Division I, Section (E) of Division II and to the
provisions of this Division III, the Corporation may from
time to time purchase or otherwise acquire outstanding
shares of Preference Stock at a price per share not
exceeding the amount at the time payable in the event of
redemption thereof otherwise than through the operations of
the applicable sinking fund, if any.
If and so long as the Corporation shall be in default in the
payment of any quarterly Dividend on shares of Preference
Stock of any series, or shall be in default in the payment
of funds into or the setting aside of funds for any sinking
fund created for any series of the Preference Stock, the
Corporation shall not (other than by the use of unapplied
funds, if any, paid into or set aside for a sinking fund or
funds prior to such default):
(1) redeem any shares of Preference Stock unless all shares
thereof are redeemed, or
(2) purchase or otherwise acquire for a valuable
consideration any shares of Preference Stock, except
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pursuant to offers of sale made by the holders of
Preference Stock in response to an invitation for
tenders given by mail by the Corporation simultaneously
to the holders of record of all shares of Preference
Stock then outstanding, at their respective addresses
then appearing on the books of the Corporation.
(E) Restrictions on Certain Corporation Action. So long as any
shares of Preference Stock shall be outstanding, the
Corporation shall not, without the affirmative vote or the
written consent of the holders of at least two-thirds of the
shares of Preference Stock at the time outstanding, or as of
a record date fixed by the Board of Directors, create or
authorize any shares of any class, other than the Class I
Preferred Stock and Class M Preferred Stock (whether now or
hereafter authorized), ranking prior to or on a parity with
the Preference Stock with respect to the payment of
Dividends or the distribution of assets upon the Liquidation
of the Corporation.
(F) Preemptive Rights. No holder of Preference Stock shall have
any preemptive right to subscribe for or acquire additional
shares of the Corporation of the same or any other class,
whether such shares are now or hereafter authorized.
(G) Cancellation. All shares of Preference Stock which shall be
redeemed or repurchased pursuant to any sinking fund created
for any series of Preference Stock, or applied in lieu of
the payment of funds into or the setting aside of funds for
any such sinking fund, and all shares of Preference Stock
issued with the privilege of conversion into shares of
Common Stock which shall be so converted, shall be retired
and cancelled and shall not be reissued. Shares of
Preference Stock otherwise redeemed, purchased or acquired
by the Corporation may be reissued in the same manner as
authorized but unissued shares of Preference Stock
undesignated as to series until and unless cancelled by the
Board of Directors pursuant to applicable law.
(H) Definitions. In this Division III and in any articles of
amendment to the Articles of Incorporation establishing a
series of Preference Stock and fixing the designation and
terms thereof, the meanings below assigned shall control:
"Junior Shares" shall mean shares of any class ranking
subordinate to the Preference Stock both as to Dividends and
upon the Liquidation of the Corporation, including Common
Stock.
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(I) Voting Rights.
(1) Except to the extent required by law or as permitted by
this Division III, the holders of shares of Preference
Stock shall have no voting rights.
(2) If at any time Dividends on any shares of Preference
Stock shall be accrued and unpaid in an amount
equivalent to six or more full quarterly Dividends, the
holders of all shares of Preference Stock shall be
entitled until, but only until, all Dividends accrued
and unpaid on all shares of Preference Stock shall have
been paid (or deposited in trust for payment on or
before the next succeeding Dividend Payment Date with
respect to shares of Preference Stock) to elect one (1)
Director of the Corporation.
(3) While the holders of the shares of Preference Stock
remain entitled to elect one Director of the
Corporation, the payment of Dividends on Preference
Stock, including accrued and unpaid Dividends, shall
not be unreasonably withheld if the financial condition
of the Corporation permits payment thereof.
(4) The right of the holders of the shares of Preference
Stock under this Section (I) to elect one Director of
the Corporation may be exercised at any annual meeting
of shareholders or, within the limitations of this
Section (I), at a special meeting of shareholders held
for such purpose; whenever such right shall have become
vested, upon request signed by any holder of record of
shares of Preference Stock and delivered to the
Corporation at its principal office not less than
ninety (90) days prior to the date for the annual
meeting next following the date of such vesting, the
President of the Corporation shall call a special
meeting of shareholders, to be held within sixty (60)
days after the receipt of such request, for the purpose
of electing a new Board of Directors, of which one
shall, subject to the provisions of this Section (I),
be elected by a vote of the holders of the shares of
Preference Stock, to serve until the next annual
meeting or until the successor of such Director shall
be elected and shall qualify.
(5) No such special meeting shall be required to be held
within 120 days after such a prior special meeting, and
the term of office of each Director of the Corporation
shall terminate at the time of any such special meeting
or adjournment thereof, notwithstanding that the term
for which such Director had been elected shall not then
have expired, and provided that the successor of such
Director is duly elected and qualified.
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(6) In the event that at any special meeting at which the
holders of the shares of Preference Stock shall be
entitled to elect one Director of the Corporation, a
quorum of the holders of the shares of Preference Stock
shall not be present in person or by proxy, the holders
of Common Stock, if a quorum thereof be present in
person or by proxy, shall temporarily elect the
Director of the Corporation, which the holders of the
shares of Preference Stock were entitled but failed to
elect, such Director to be designated as having been so
elected and his or her term of office to expire at such
time thereafter as his or her successor shall be
elected by the holders of the shares of Preference
Stock as provided in this Section (I).
(7) Whenever the holders of the shares of Preference Stock
shall be entitled to elect one Director, any holder of
record of shares of Preference Stock shall have the
right, during regular business hours, in person or by a
duly authorized representative, to examine the
Corporation stock records of the Preference Stock for
the purpose of communicating with other holders of
shares of Preference Stock with respect to the exercise
of such right of election, and to make a list of such
holders.
(8) Whenever, under the terms of this Section (I), the
holders of the shares of Preference Stock shall be
divested of the right to elect one Director, upon
request signed by any holder of record of Common Stock
and delivered to the Corporation at its principal
office not less than ninety (90) days prior to the date
for the annual meeting next following the date of such
divesting, the President of the Corporation shall call
a special meeting of the holders of Common Stock to be
held within sixty (60) days after the receipt of such
request for the purpose of electing a new Board of
Directors to serve until the next annual meeting or
until their respective successors shall be elected and
shall qualify.
(9) The term of office of each Director of the Corporation
shall terminate at the time of any such special meeting
or adjournment thereof at which a quorum of holders of
Common Stock shall be present in person or by proxy,
notwithstanding that the term for which such Director
had been elected shall not then have expired, and
provided that the successor to such Director is duly
elected and qualified.
(10) If, during any interval between annual meetings of
shareholders for the election of Directors and while
the holders of the shares of Preference Stock shall be
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entitled to elect one Director, the Director in office
who has been elected by the holders of shares of
Preference Stock, shall, by reason of resignation,
death or removal, cease to be a Director, the President
of the Corporation shall call a special meeting of the
holders of the shares of Preference Stock and such
vacancy shall be filled at such special meeting if such
vacancy occurred more than six months prior to the next
ensuing annual meeting.
(11) The Director elected by the holders of the shares of
Preference Stock may be removed from office only by
vote of the holders of a majority of the votes of the
outstanding shares of Preference Stock.
(12) At any annual or special meeting of the shareholders
held for any purpose, including the purpose of electing
Directors when the holders of the shares of Preference
Stock shall be entitled to elect one Director, the
presence in person or by proxy of holders of a majority
of the votes of the outstanding shares of Preference
Stock shall be required to constitute a quorum of the
holders of the shares of Preference Stock.
(13) At any meeting of shareholders at which the holders of
the shares of Preference Stock are required to vote by
law or are permitted to vote by any articles of
amendment to the Articles of Incorporation, each holder
of shares of each series of Preference Stock shall have
the number or fraction of votes set forth for each such
share in the articles of amendment to the Articles of
Incorporation in which the terms of such series are
determined, in each case standing in the name of such
holder on the books of the Corporation on the record
date fixed for such purpose, or, if no record date is
fixed, on the date on which such vote is taken.
(14) The holders of shares of Preference Stock shall not be
entitled to receive notice of any meeting at which they
are not entitled to vote.
(J) $7.80 Series Preference Stock.
(1) Designation of Series and Number of Shares to be
Issuable Therein. There is established a series of
Preference Stock designated "Preference Stock, $7.80
Series" ("$7.80 Series"), which is a closed series
consisting of 400,000 shares of Preference Stock.
(2) Rate of Dividend. The rate per annum of Dividends on
the $7.80 Series is $7.80 per share. The Dividend
payable on each share of the $7.80 Series for any
period less than a full quarterly Dividend period shall
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be computed on the basis of twelve 30-day months and
the actual number of days elapsed in the period for
which such Dividend is payable.
(3) Sinking Fund Provisions. Subject to the limitations
stated in Section (B) of Division I, Section (E) of
Division II and Section (D) of Division III, while any
shares of the $7.80 Series shall remain outstanding,
the Corporation shall on or before May 1, 2001, and on
or before May 1 of each year thereafter to and
including May 1, 2005 (each such May 1 being
hereinafter in this Section (I) called a "Sinking Fund
Redemption Date"), set aside, separate and apart from
its other funds, an amount equal to $6,660,000 (or such
lesser amount as may be sufficient to redeem all of the
shares of the $7.80 Series then outstanding) as a
mandatory sinking fund payment for the exclusive
benefit of shares of the $7.80 Series, plus such
further amount as shall equal the accrued and unpaid
Dividends on the shares of the $7.80 Series to be
redeemed out of such payment (as hereinafter in this
Section (I) provided) through the day preceding the
applicable Sinking Fund Redemption Date. The obliga-
tion of the Corporation to make such payments shall be
cumulative, so that if for any reason the full amount
thereof shall not be set aside for any year, the amount
of the deficiency from time to time shall be added to
the amount due from the Corporation on subsequent
Sinking Fund Redemption Dates until the deficiency
shall have been fully satisfied. The Corporation shall
be entitled to credit against any such mandatory
sinking fund payment shares of the $7.80 Series
redeemed, purchased or otherwise acquired by the
Corporation, except through application of any sinking
fund payment (whether mandatory or optional), and not
theretofore so credited, at the sinking fund redemption
price hereinafter specified in this Section (I).
In addition to the mandatory sinking fund payments
required by the immediately preceding paragraph, the
Corporation may at its option, in respect of any
Sinking Fund Redemption Date, set aside, separate and
apart from its other funds, an amount not in excess of
$6,660,000 as an optional sinking fund payment for the
exclusive benefit of shares of the $7.80 Series, plus
such further amount as shall equal the accrued and
unpaid Dividends on the shares of the $7.80 Series to
be redeemed out of such payment (as hereinafter in this
Section (I) provided) through the day preceding the
applicable Sinking Fund Redemption Date. The privilege
of making such payments shall not be cumulative, and no
such payment shall relieve the Corporation to any
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extent from its obligation to make any subsequent
mandatory sinking fund payment.
Any amounts set aside by the Corporation pursuant to
this Section (I) shall be applied on the date of such
setting aside if a Sinking Fund Redemption Date or
otherwise on the first Sinking Fund Redemption Date
occurring thereafter to the redemption of shares of the
$7.80 Series at $100.00 per share, plus accrued and
unpaid Dividends through the day preceding the
applicable Sinking Fund Redemption Date, in the manner
and upon the notice provided in Section (D) of this
Division III. If any Sinking Fund Redemption Date
shall be a Saturday, Sunday or other day on which
banking institutions in Chicago, Illinois or New York,
New York are authorized or obligated to remain closed,
such term shall be construed to refer to the next
preceding business day.
Subject to the limitations stated in Section (B) of
Division I, Section (E) of Division II and Section (D)
of this Division III, the Corporation shall on May 1,
2006 redeem any shares of the $7.80 Series then
outstanding at $100.00 per share, plus accrued and
unpaid Dividends through April 30, 2006.
(4) Optional Redemption. The shares of the $7.80 Series
are not redeemable at the option of the Corporation, in
whole or in part, prior to May 1, 1996. In the manner
and upon the notice provided in Section (D) of this
Division III, the shares of the $7.80 Series may be
redeemed at the option of the Corporation, at time or
from time to time on or after May 1, 1996, at $107.80
per share if redeemed prior to May 1, 2001; at $103.90
per share if redeemed on or after May 1, 2001 and prior
to May 1, 2003; and at $101.95 per share thereafter;
plus, in each case, accrued and unpaid Dividends
through the day preceding the redemption date.
(5) Liquidation Prices. In the event of voluntary
Liquidation of the Corporation, the holder of each
share of the $7.80 Series shall be entitled to $107.80
per share prior to May 1, 2001; to $103.90 per share
thereafter and prior to May 1, 2003; and to $101.95 per
share thereafter; plus accrued and unpaid Dividends
through the day preceding the date of payment, and no
more. In the event of involuntary Liquidation of the
Corporation, the holder of each share of the $7.80
Series shall be entitled to $100.00 per share, plus
accrued and unpaid Dividends through the day preceding
the date of payment, and no more.
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(6) Conversion Privileges. Shares of the $7.80 Series
shall not be convertible into Common Stock.
(7) Votes. Each holder of shares of the $7.80 Series shall
have one vote for each such share on all matters upon
which holders of shares of the $7.80 Series are
entitled to vote.
(8) Merger Series. The $7.80 Series is a Merger Series and
on the Effective Date of the Merger one share of $7.80
Series shall be issued upon the conversion in the
Merger of a Preference Share, without par value, of
Iowa-Illinois of the series designated $7.80 Series.
(K) $5.25 Series of Preference Stock.
(1) Designation of Series and Number of Shares to be
Issuable Therein. There is established a series of
Preference Stock designated "Preference Stock, $5.25
Series" ("$5.25 Series"), which is a closed series
consisting of 100,000 shares of Preference Stock.
(2) Rate of Dividend. The rate per annum of Dividends on
the $5.25 Series is $5.25 per share.
(3) Retirement of $5.25 Series. Subject to the limitations
stated in Section (B) of Division I, Section (E) of
Division II and Section (D) of Division III, the
Corporation shall on November 1, 2003 redeem all shares
of the $5.25 Series then outstanding at $100.00 per
share, plus accrued and unpaid Dividends through
October 31, 2003.
(4) Optional Redemption. In the manner and upon the notice
provided in Section (D) of this Division III, the
shares of the $5.25 Series may be redeemed at the
option of the Corporation, at any time or from time to
time on or after November 1, 1998, at $101.97 per share
if redeemed prior to November 1, 1999; at $101.31 per
share thereafter and prior to November 1, 2000; at
$100.66 per share thereafter and prior to November 1,
2001; and at $100.00 per share thereafter; plus, in
each case, accrued and unpaid Dividends through the day
preceding the redemption date.
(5) Liquidation Prices. In the event of voluntary
Liquidation of the Corporation, the holder of each
share of the $5.25 Series shall be entitled to $105.25
per share prior to November 1, 1998; to $101.97 per
share thereafter and prior to November 1, 1999; to
$101.31 per share thereafter and prior to November 1,
2000; to $100.66 per share thereafter and prior to
November 1, 2001; and to $100.00 per share thereafter;
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plus, in each case, accrued and unpaid Dividends
through the day preceding the date of payment, and no
more. In the event of involuntary Liquidation of the
Corporation, the holder of each share of the $5.25
Series shall be entitled to $100.00 per share, plus
accrued and unpaid Dividends through the day preceding
the date of payment, and no more.
(6) Conversion Privileges. Shares of the $5.25 Series
shall not be convertible into Common Stock.
(7) Votes. Each holder of shares of the $5.25 Series shall
have one vote for each such share on all matters upon
which holders of shares of the $5.25 Series are
entitled to vote.
(8) Merger Series. The $5.25 Series is a Merger Series and
on the Effective Date of the Merger one share of $5.25
Series shall be issued upon the conversion in the
Merger of a Preference Share, without par value, of
Iowa-Illinois of the series designated $5.25 Series.