Effective November 12, 1999
Exhibit 3(i)(c)1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ENTERGY ARKANSAS, INC.
These Amended and Restated Articles of Incorporation, duly
adopted pursuant to the authority and provisions of Title 4,
Chapter 27 of the Arkansas Code of 1987 Annotated, amend,
restate, integrate and supersede the existing Amended and
Restated Articles of Incorporation and all amendments thereto.
FIRST: Name. The name of the Corporation is Entergy
Arkansas, Inc.
SECOND: Adoption of Arkansas Business Corporation Act. The
provisions of Title 4, Chapter 27 of the Arkansas Code of 1987
Annotated, as may be amended or otherwise modified (the "Arkansas
Business Corporation Act"), shall apply to the Corporation and to
these Amended and Restated Articles of Incorporation.
THIRD: Purposes. The purpose of the Corporation is to
engage in any lawful act or activity for which corporations may
be organized under the Arkansas Business Corporation Act. The
primary purpose for which the Corporation is organized, which is
provided for informational purposes-only and shall not limit the
purposes provided in the Arkansas Business Corporation Act, is to
engage in the business of constructing, holding, operating, and
maintaining (i) telephone, telegraph, radio, wireless and other
systems, facilities, structures and devices for the receipt and
transmission of sounds and signals, (ii) inter-urban, city and
street railways, railroads, and bus lines, and (iii) systems,
facilities, structures and devices for the manufacture,
production, transmission, distribution, control, storage,
purchase, sale, supply and application of electricity, gas,
water, steam, ice, refrigeration, and power.
FOURTH: Powers. The Corporation shall have and exercise all
of the powers conferred upon corporations by virtue of their
existence under, and as authorized by, the Arkansas Business
Corporation Act, as may be amended or otherwise modified.
FIFTH: Authorized Shares and Rights of Shareholders.
(a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 352,730,000, which
shall consist of one class of 325,000,000 shares of common stock
of the par value of $0.01 per share ("Common Stock") and three
classes of preferred stock consisting of 15,000,000 shares of
preferred stock of the par value of $0.01 per share ("Class A
Preferred Stock"), 3,730,000 shares, of preferred stock of the
par value of $100 per share ("$100 Preferred Stock"), and
9,000,000 shares of preferred stock of the par value of $25 per
share ("$25 Preferred Stock"), which three classes of preferred
stock may be collectively referred to as "Preferred Stock."
(b) The Board of Directors of the Corporation is
authorized, subject to the limitations prescribed by the Arkansas
Business Corporation Act and the provisions of this Article
FIFTH, to provide for the issuance of the shares of Preferred
Stock in series, and, by filing articles of amendment pursuant to
the Arkansas Business Corporation Act, to establish from time to
time the number of shares to be included in each such series and
to fix the designation, powers, preferences and rights of the
shares of each such series and. the qualifications, limitations
or restrictions thereof. The authority of the Board of Directors
with respect to each such series shall include determination of
only the following:
(1) The number of shares constituting that series and
the distinctive designation of that series;
(2) The dividend rate, or the method of calculation
thereof, on the shares of that series, the dates on which
dividends shall be paid in each year or the method of
determination thereof, and the date from which such dividends
shall commence to accumulate:
(3) Whether that series shall have conversion
privileges, and, if so, the terms and conditions of such
conversion, including provision for adjustment of the conversion
rate in such events as the Board of Directors shall determine;
(4) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and
at different redemption dates;
(5) Whether that series shall have a sinking fund for
the redemption or purchase of shares of that series, and, if so,
the terms and amount of such sinking fund; and
(6) The amount payable on the shares of that series in
the event of voluntary or, in the case of the Class A Preferred
stock, involuntary liquidation, dissolution or winding up of the
Corporation.
The Class A Preferred Stock, the $100 Preferred Stock and
the $25 Preferred Stock shall have the same rank and shall be
identical with each other, except as to matters relating to the
par values thereof, the variations between the respective series
thereof, and the voting entitlement of the respective shares
thereof in cases when the shares of two or more classes of
Preferred Stock are required to vote together as a voting group
or one or more classes of Preferred Stock are required to vote
together with the Common Stock as a voting group. The shares of
all series within a class of Preferred Stock shall have the same
rank, shall be identical with each other, and shall have the same
relative rights, except as to those characteristics described in
clauses l through 6 above.
(c) Subject to the foregoing, the distinguishing
characteristics of the Preferred Stock shall be:
(1) Each series of the Preferred Stock, pari passu
with all shares of Preferred Stock of any class or series then
outstanding, shall be entitled, but only when and as declared by
the Board of Directors out of funds legally available for the
payment of dividends, in preference to the Common Stock, to
dividends at the rate stated and expressed with respect to such
series by these Amended and Restated Articles of Incorporation or
by the articles of amendment creating such series; such dividends
to be cumulative from such date and payable on such dates in each
year as may be stated and expressed in these Amended and Restated
Articles of Incorporation or such articles of amendment to
stockholders of record as of a date not to exceed forty (40) days
and not less than ten (10) days preceding the dividend payment
dates so fixed.
(2) (A) When dividends payable on any shares of the
Preferred Stock at any time outstanding shall be in arrears in an
amount equal to or greater than the aggregate dividends
accumulated on the outstanding Preferred Stock in any period of
twelve (12) months, and thereafter until all dividends on any
such Preferred Stock in arrears shall have been paid or declared
and set apart for payment, the holders of Preferred Stock, voting
together as a voting group, to the exclusion of the holders of
Common Stock, shall be entitled to elect the smallest number of
directors necessary to constitute a majority of the full Board of
Directors (the "Preferred Directors"), and except as provided in
subparagraph (B) below, the holders of Common Stock, voting
together as a voting group, to the exclusion of the holders of
Preferred Stock, shall be entitled to elect the remaining
directors of the Corporation (the "Remaining Directors"). The
terms of office, as directors, of all persons who may be
directors of the Corporation at the time shall terminate upon the
election of the Preferred Directors, except that if the holders
of Common Stock shall not have elected the Remaining Directors
then, and only in that event, the directors of the Corporation in
office just prior to the election of the Preferred Directors
shall elect the Remaining Directors. Thereafter, while such
arrearage continues, the Remaining Directors, whether elected by
directors, as aforesaid, or whether originally or later elected
by holders of the Common Stock, shall continue in office until
their successors are elected by holders of the Common Stock and
shall qualify.
(B) Accumulations of dividends on any shares of
the Preferred Stock shall not bear interest. If and when all
dividends in arrears on the Preferred Stock shall be paid in
full, or declared and set apart for payment (such dividends to be
declared and paid out of any funds legally available therefor as
soon as reasonably practicable), the holders of the Preferred
Stock shall be divested of any special right with respect to the
election of directors, and the voting power of the holders of the
Preferred Stock and the holders of the Common Stock shall revert
to the status existing before the vesting of such special voting
right in the holders of the Preferred Stock, but always subject
to the same provisions for vesting such special rights in the
holders of the Preferred Stock in case of further like arrearage
or arrearages in the payment of dividends thereon as described in
subparagraph (A) above. When all dividends in arrears on the
Preferred Stock shall have been paid in full, or declared and set
apart for payment, the terms of office of all Preferred Directors
shall forthwith terminate, and the resulting vacancies shall be
filled by the vote of a majority of the Remaining Directors.
(C) Except as provided in Article SEVENTH hereof,
in case of any vacancy in the office of a director occurring
among the Preferred Directors the remaining Preferred Directors
by affirmative vote of a majority thereof, or the remaining
Preferred Director, if there be but one, may elect a successor or
successors to hold office for the unexpired term or terms of the
Preferred Director or Directors whose place or places shall be
vacant. Likewise, except as provided in Article SEVENTH hereof,
in case of any vacancy in the office of a director occurring
among the Remaining Directors the holders of the Common Stock, by
affirmative vote of a majority thereof, shall elect a successor
or successors to hold office for the unexpired term or terms of
the Remaining Director or Director whose place or places shall be
vacant.
(D) Whenever the right shall have accrued to the
holders of the Preferred Stock to elect directors it shall be the
duty of the President, a Vice-President or the Secretary of the
Corporation to call and cause notice to be given to the
stockholders entitled to vote at a meeting to be held at such
time as the Corporation's officers may fix, not less than forty-
five (45) nor more than ninety (90) days after the accrual of
such right, for the purpose of electing directors. The notice so
given shall be mailed to each holder of record of Preferred Stock
at his last known address appearing on the books of the
Corporation and shall set forth, among other things, (i) that by
reason of the fact that dividends payable on any shares of
Preferred Stock are in arrears in an amount equal to or greater
than the aggregate dividends accumulated on the outstanding
Preferred Stock in any period of twelve (12) months, the holders
of Preferred Stock, voting together as a voting group, to the
exclusion of holders of Common Stock, have the right to elect the
smallest number of directors necessary to constitute a majority
of the full Bard of Directors of the Corporation, (ii) that any
holder of the Preferred Stock has the right, at any reasonable
time, to inspect, and make copies of, the list or lists of
holders of Preferred Stock maintained at the principal office of
the Corporation or at the office of any Transfer Agent of the
Preferred Stock, and (iii) either the entirety of this paragraph
(2) or the substance thereof with respect to the number of shares
of the Preferred Stock required to be represented at any meeting,
or adjournment thereof, called for the election of directors of
the Corporation. At the first meeting of stockholders held for
the purpose of electing directors during such time as the holders
of the Preferred Stock shall have the special right to elect
directors ("First Meeting"), the presence in person or by proxy
of the holders of a majority of the votes entitled to be cast by
the Common Stock shall be required to constitute a quorum of such
voting group for the election of directors, and the presence in
person or by proxy of the holders of a majority of the votes
entitled to be cast by the Preferred Stock shall be required to
constitute a quorum of such voting group for the election of
directors; provided, however, that in the absence of a quorum of
the holders of the Preferred Stock, no election of directors
shall be held, but the holders of a majority of the votes
entitled to be cast by the Preferred Stock which are represented
at the meeting shall have power to adjourn the election of the
directors to a date not less than fifteen (15) nor more than
fifty (50) days from the giving of the notice of such adjourned
meeting hereinafter provided for ("Adjourned Meeting"); and
provided, further, that at such Adjourned Meeting the presence in
person or by proxy of the holders of thirty-five percent (35%) of
the votes entitled to be cast by the Preferred Stock shall be
required to constitute a quorum of such voting group far the
election of directors. In the event such First Meeting of
stockholders shall be so adjourned, it shall be the duty of the
President, a Vice President or the Secretary of the Corporation,
within ten (10) days from the date on which such First Meeting
shall have been adjourned, to cause notice of such Adjourned
Meeting to be given to the stockholders entitled to vote thereat,
such Adjourned Meeting to be held not less than fifteen (15) days
nor more than fifty (50) days from the giving of such second
notice. Such second notice shall be given in the form and manner
hereinabove provided for with respect to the notice required to
be given of such First Meeting of stockholders, and shall further
set forth that a quorum was not present at such First Meeting and
that the holders of thirty-five percent (35%) of the votes
entitled to be cast by the Preferred Stock shall be required to
constitute a quorum of such voting group for the election of
directors at such Adjourned Meeting. If the requisite quorum of
holders of the Preferred Stock shall not be present at such
Adjourned Meeting, then the directors of the Corporation then in
office shall remain in office until the next Annual Meeting of
the Corporation, or special meeting in lieu thereof, and until
their successors shall have been, elected and shall qualify.
Neither such First Meeting nor such Adjourned Meeting shall be
held on a date within ninety (90) days before the date of the
next Annual Meeting of the Corporation or special meeting in lieu
thereof. At each Annual Meeting of the Corporation, or special
meeting in lieu thereof, held during such time as the holders of
the Preferred Stock shall have the right to elect Preferred
Directors, the foregoing provisions of this paragraph (2) shall
govern each Annual Meeting, or special meeting in lieu thereof,
as if such Annual Meeting or special meeting were the First
Meeting; provided that if at any adjourned annual meeting, or
special meeting in lieu thereof, the holders of at least thirty-
five percent (35%) of the votes entitled to be cast by the
Preferred Stock shall not be represented at the meeting, all the
directors shall be elected by a vote of the holders of the Common
Stock of the Corporation represented at the meeting.
(3) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote at a meeting called for that purpose) of the
holders of at least two-thirds (2/3) of the votes entitled to be
cast by the Preferred Stock, voting together as a voting group:
(A) create, authorize or issue any new stock
which after issuance would rank prior to the Preferred Stock as
to dividends or distributions or in liquidation, dissolution, or
winding up, or create, authorize or issue any security
convertible into shares of any such stock except for the purpose
of providing funds for the redemption of all of the Preferred
Stock then outstanding, such new stock or security not to be
issued until such redemption shall have been authorized and
notice of such redemption given and the aggregate redemption
price deposited as provided in paragraph (7) below; provided,
however, that any such new stock or security shall be issued
within twelve (12) months after the vote of the Preferred Stock
herein provided for authorizing the issuance of such new Stock or
security; or
(B) amend, alter or repeal any of the rights,
preferences or powers of the holders of the Preferred Stock so as
to affect adversely any such rights, preferences or powers;
provided, however, that if such amendment, alteration or repeal
affects adversely the rights, preferences or powers of one or
more, but not all, series of Preferred Stock at the time
outstanding, only the consent of the holders of at least two-
thirds (2/3) of votes entitled to be cast by the shares of all
series so affected, voting together as a voting group, shall be
required; and provided, further, that an amendment to increase or
decrease the authorized amount of Preferred Stock or to create or
authorize or increase or decrease the amount of any class of
stock ranking on a parity with the outstanding shares of the
Preferred Stock as to dividends or assets shall not be deemed to
affect adversely the rights, preferences or powers of the holders
of the Preferred Stock or any series thereof.
(4) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote at a meeting called for that purpose) of the
holders of a majority of the votes entitled to be cast by the
Preferred Stock, voting together as a voting group:
(A) merge or consolidate with or into any other
corporation or sell or otherwise dispose of all or substantially
all of its assets unless such merger, consolidation, sale or
other disposition or the issuance or assumption of securities in
the effectuation thereof shall have been ordered or approved
under the Public Utility Holding Company Act of 1935, as amended,
or as may be amended ("Public Utility Holding Company Act"):
(B) issue or assume any unsecured notes,
debentures or other securities representing unsecured debt (other
than for the purpose of refunding or renewing outstanding
unsecured securities issued or assumed by the Corporation
resulting in equal or longer maturities or redeeming or otherwise
retiring all outstanding shares of the Preferred Stock) if
immediately after such issue or assumption (i) the total
outstanding principal amount of all unsecured notes, debentures
or other securities representing unsecured debt of the
Corporation will thereby exceed twenty percent (20%) of the
aggregate of all existing secured debt of the Corporation and the
capital stock, premiums thereon, and surplus of the Corporation,
as stated on its books, or (ii) the total outstanding principal
amount of all unsecured notes, debentures, or other securities
representing unsecured debt of the Corporation of maturities of
less than ten (10) years will thereby exceed ten percent (10%) of
such aggregate. For the purposes of this subparagraph (B), the
payment due upon the maturity of unsecured debt having an
original single maturity in excess of ten (10) years or the
payment due upon the final maturity of any unsecured serial debt
which had original maturities in excess of ten (10) years shall
not be regarded as unsecured debt of a maturity of less than ten
(10) years until such payment shall be required to be made within
three (3) years;
(C) issue, sell, or otherwise dispose of any
shares of the Preferred Stock or of any other class of stock
ranking on a parity with the Preferred Stock as to dividends or
distributions or in liquidation, dissolution, or winding up
(other than for the purpose of refinancing an equal par amount of
the $100 or $25 Preferred Stock or an equal liquidation value
amount of the Class A Preferred Stock or of stock ranking prior
to or on a parity with the Preferred Stock as to dividends or
distributions or in liquidation, dissolution, or winding up)
unless the gross income of the Corporation for a period of twelve
(12) consecutive calendar months within a period of fifteen (15)
calendar months immediately preceding the calendar month of the
issuance, sale or disposition of such stock, determined in
accordance with generally accepted accounting principles (but in
any event after deducting all taxes and the greater of (i) the
amount for said period charged by the Corporation on its books to
depreciation expense or (ii) the largest amount then required to
be provided therefor by any mortgage indenture of the
Corporation), shall have been at least one and one-half times the
sum of (a) the annual interest charges on all bonds, debentures,
notes and other securities representing indebtedness of the
Corporation and (b) the annual dividend requirements on all
outstanding shares of the Preferred Stock and of all other
classes of stock ranking prior to, or on a parity with, the
Preferred Stock as to dividends or distributions, including the
shares proposed to be issued computed at the initial rate
applicable at the time of issuance; provided, that there shall be
excluded from the foregoing computation interest charges on all
indebtedness and dividends on all shares of stock which are to be
retired in connection with the issue of such additional shares of
the Preferred Stock or other class of stock ranking prior to, or
on a parity with, the Preferred Stock as to dividends or
distributions; and provided, further, that if any such
indebtedness or stock bears interest or provides for dividends at
a variable rate, then the interest or dividends on such
indebtedness or stock shall be computed at the average annual
rate in effect for such indebtedness or stock during the period
of twelve (12) consecutive calendar months (or any portion
thereof in which such indebtedness or stock is outstanding) being
used for the calculation of gross income, and if such
indebtedness or stock has been issued after the end of such
twelve (12) consecutive calendar months, then computed at the
initial rate applicable at the time of issuance; and provided,
further, that in any case where such additional shares of the
Preferred Stock, or other class of stock ranking prior to, or on
a parity with, the Preferred Stock as to dividends or
distributions, are to be issued in connection with the
acquisition of additional property, the gross income of the
property to be so acquired, computed on the same basis as the
gross income of the Corporation, may be included on a pro forma
basis in making the foregoing computation; or
(D) issue, sell, or otherwise dispose of any
shares of the Preferred Stock, or of any other class of stock
ranking on a parity with the Preferred Stock as to dividends or
distributions, unless the aggregate of the capital of the
Corporation applicable to the Common Stock and the surplus of the
Corporation shall be not less than the aggregate amount payable
on the involuntary liquidation, dissolution or winding up of the
Corporation in respect of all shares of the Preferred Stock and
all shares of stock, if any, ranking prior thereto, or on a
parity therewith, as to dividends or distributions, which will be
outstanding after the issue of the shares proposed to be issued;
provided, that if, for the purposes of meeting the requirements
of this subparagraph (D), it becomes necessary to take into
consideration any earned surplus of the Corporation, the
Corporation shall not thereafter pay any dividends on shares of
the Common Stock which would result in reducing the Corporation's
Common Stock Equity (as in paragraph (8) hereinafter defined) to
an amount less than the aggregate amount payable, on involuntary
liquidation, dissolution or winding' up of the Corporation, on
all shares of the Preferred Stock and of any stock ranking prior
to, or on a parity with, the Preferred Stock, as to dividends or
other distributions, at the time outstanding.
(5) Each holder of Common Stock of the Corporation
shall be entitled to one vote for each share of such stock
standing in his name on the books of the Corporation. Except as
hereinbefore expressly provided in this Article FIFTH and as may
otherwise be required by law, the holders of Preferred Stock
shall have no power to vote and shall be entitled to no notice of
any meeting of the stockholders of the Corporation. As to those
matters upon which holders of Common Stock, the Class A Preferred
Stock, the $100 Preferred Stock and the $25. Preferred Stock are
entitled to vote as separate voting groups, each holder of such
stock shall be entitled to one vote for each share of such stock
standing in his name on the books of the Corporation. As to those
matters upon which holders of the Class A Preferred Stock, the
$100 Preferred Stock, and the $25 Preferred Stock shall be
required to vote as a single voting group, each holder of Class A
Preferred Stock shall be entitled to the number of votes per
share produced by dividing the liquidation value of such share by
$100, each holder of $100 Preferred Stock shall be entitled to
one vote for each share of such stock standing in his name on the
books of the Corporation, and each holder of $25 Preferred Stock
shall be entitled to one-quarter (l/4) vote for each share of
such stock standing in his name on the books of the Corporation.
As to those matters upon which the holders of Common Stock and
the holders of Preferred Stock shall be required to vote together
as a single voting group, each holder of Common Stock shall be
entitled to one vote for each share of such stock standing in his
name on the books of the Corporation, each holder of Class A
Preferred Stock shall be entitled to the number of votes per
share produced by dividing the liquidation value of such share by
$100, each holder of $100 Preferred Stock shall be entitled to
one vote for each share of such stock standing in his name on the
books of the Corporation, and each holder of $25 Preferred Stock
shall be entitled to one-quarter (l/4) vote for each share of
such stock standing in his name on the books of the Corporation.
(6) In the event of any voluntary liquidation,
dissolution or winding up of the Corporation, the Preferred
Stock, all shares of which then outstanding being treated pari
passu, shall have a preference over the Common Stock until an
amount equal to the then current redemption price shall have been
paid. In the event of any involuntary liquidation, dissolution
or winding up of the Corporation, which shall include any such
liquidation, dissolution or winding up that may arise out of or
result from the condemnation or purchase of all or a major
portion of the properties of the Corporation by (i) the United
States Government or any authority, agency or instrumentality
thereof, (ii) a state of the United States or any political
subdivision, authority, agency, or instrumentality thereof, or
(iii) a district, cooperative or other association or entity not
organized for profit, the Preferred Stock, all shares of which
then outstanding being treated pari passu, shall also have a
preference over the Common Stock until the full par value
thereof, in the case of the $100 Preferred Stock and the $25
Preferred Stock, and the full liquidation value thereof, in the
case of the Class A Preferred Stock, and an amount equal to all
accumulated and unpaid dividends thereon shall have been paid by
dividends or distribution.
(7) (A) The Corporation may at any time (except to
the extent redemption is restricted herein or in the Articles of
Amendment creating a series of the Preferred Stock) redeem all of
any series of the Preferred Stock or may from time to time
(except to the extent so restricted) redeem any part thereof, by
paying in cash the redemption price then applicable thereto as
stated and expressed with respect to such series herein or in the
articles of amendment providing for the issue of such shares,
plus, in each case, an amount equivalent to the accumulated and
unpaid dividends, if any, to the date of redemption. Notice of
the intention of the Corporation to redeem all or any part of the
Preferred Stock shall be mailed not less than thirty (30) days
nor more than sixty (60) days before the date of redemption to
each holder of record of Preferred Stock to be redeemed, at his
last known address as shown by the Corporation's records, and not
less than thirty (30) days' nor more than sixty (60) days' notice
of such redemption may be published in such manner as may be
prescribed by resolution of the Board of Directors of the
Corporation; and, in the event of such publication, no defect in
the mailing of such notice shall affect the validity of the
proceedings for the redemption of any shares of Preferred Stock
so to be redeemed. Contemporaneously with the mailing or the
publication of such notice as aforesaid or at any time thereafter
prior to the date of redemption, the Corporation. may deposit the
aggregate redemption price (or the portion thereof not already
paid in the redemption of such Preferred Stock so to be redeemed)
with any bank or trust company in the City of New York, New York,
or in the City of Little Rock, Arkansas, or in the City of Pine
Bluff, Arkansas, named in such notice, payable to the order of
the record holders of the Preferred Stock so to be redeemed, as
the case may be, on the endorsement and surrender of their
certificates, and thereupon said holders shall cease to be
stockholders with respect to such shares; and from and after the
making of such deposit such holders shall have no interest in or
claim against the Corporation with respect to such shares, but
shall be entitled only to receive such moneys from such bank or
trust company deposited as in this paragraph (7) provided, on
endorsement and surrender of their certificates, as aforesaid.
Such moneys may be invested in such securities as are then legal
investments for such bank or trust company and the earnings, if
any, thereon shall be paid to or at the direction of the
Corporation. Any moneys so deposited, plus interest thereon, if
any, remaining unclaimed at the end of four (4) years from the
date fixed for redemption, if thereafter requested by resolution
of the Board of Directors, shall be repaid to the Corporation,
and in the event of such repayment to the Corporation, such
holders of record of the shares so redeemed as shall not have
made claim against such moneys prior to such repayment to the
Corporation, shall be deemed to be unsecured creditors of the
Corporation for an amount, without interest, equivalent to the
amount deposited, as above stated, for the redemption of such
shares and so paid to the Corporation. The Corporation shall not
be obligated to keep such moneys repaid to the Corporation
separate and apart from other funds of the Corporation. Shares of
the Preferred Stock which have been redeemed shall not be
reissued as part of the same series as originally issued, but
shall revert to the status of authorized but unissued shares of
Preferred Stock of the same class, which may thereafter be
reissued as part of a new series of preferred stock of the same
class in accordance with the terms of these Amended and Restated
Articles of Incorporation. If less than all of the shares of a
series of the Preferred Stock are to be redeemed, the shares
thereof to be redeemed, unless otherwise provided in these
Amended and Restated Articles of Incorporation or the articles of
amendment creating such series, shall be selected by lot, in such
manner as the Board of Directors of the Corporation shall
determine, by an independent bank or trust company selected for
that purpose by the Board of Directors of the Corporation.
(B) Nothing herein contained shall limit any
legal right of the Corporation to purchase or otherwise acquire
any shares of the Preferred Stock; provided, however, that if at
any time it shall have failed to pay dividends in full on any
outstanding shares of the Preferred Stock, thereafter and until
dividends in full on all shares of the Preferred Stock
outstanding shall have been paid, or declared and set aside for
payment, for all past quarter-yearly dividend periods, it shall
not (i) acquire any shares of the Preferred Stock (except by
redemption of all shares of the Preferred Stock) unless approval
is obtained under the Public Utility Holding Company Act, or (ii)
make any payment or set aside any funds for payment into any
sinking fund for the purchase or redemption of any shares of the
Preferred Stock unless approval is obtained under the Public
Utility Holding Company Act. Any shares of the Preferred Stock so
redeemed, purchased or acquired shall not be reissued as part of
the same series as originally issue, but shall revert to the
status of authorized but unissued shares of Preferred Stock of
the same class, which shares may thereafter be reissued as part
of a new series of Preferred Stock of the same class in
accordance with the terms of these Amended and Restated Articles
of Incorporation.
(8) For the purposes of this paragraph (8) and
subparagraph (D) of paragraph (4) the term "Common Stock Equity"
shall mean the aggregate of (i) the par value of, or stated
capital represented by, the outstanding shares (other than shares
owned by the Corporation) of stock ranking junior to the
Preferred Stock as to dividends and assets, (ii) the premium on
such junior stock and (iii) the surplus (including earned
surplus, capital surplus and surplus invested in plant) of the
Corporation less (unless the amounts or items are being amortized
or are being provided for by reserves) (a) any amounts recorded
on the books of the Corporation for utility plant and other plant
in excess of the original cost thereof, (b) unamortized debt
discount and expense, capital stock discount and expense and any
other intangible items set forth on the asset side of the balance
sheet as a result of accounting convention, (c) the excess, if
any, of the aggregate amount payable on involuntary liquidation,
dissolution or winding up of the affairs of the Corporation upon
all outstanding Preferred Stock of the Corporation over the
aggregate par or stated value thereof and any premiums thereon,
and (d) the excess, if any for the period beginning with January
1, 1954 to the end of a month within ninety (90) days preceding
the date as of which Common Stock Equity is determined, of the
cumulative amount computed under requirements contained in the
Corporation's mortgage indentures relating to minimum
depreciation provisions (this cumulative amount being the
aggregate of the largest amounts separately computed for entire
periods of differing coexisting mortgage indenture requirements),
over the amount charged by the Corporation on its books for
depreciation during such period, including the final fraction of
a year. For the purpose of this paragraph (8): (i) the term
"Total Capitalization" shall mean the sum of the Common Stock
Equity plus item (c) in this paragraph (8) plus the stated
capital applicable to, and any premium on, outstanding stock of
the Corporation not included in Common Stock Equity, plus the
principal amount of all outstanding bonds, debentures, notes and
other securities representing indebtedness of the Corporation
maturing more than twelve months after the date of the
determination of the Total Capitalization; and (ii) the term
"dividends on Common Stock" shall include dividends on Common
Stock (other than dividends payable only in shares of Common
Stock), distributions on, and purchases or other acquisitions for
value of, any Common Stock of the Corporation or other stock, if
any, subordinate to Preferred Stock as to dividends or other
distributions. So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not declare or pay any
dividends on the Common Stock, except as follows:
(A) If and so long as the Common Stock Equity at
the end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a result
of such dividend would become, less than twenty percent (20%) of
Total Capitalization, the Corporation shall not declare such
dividend in an amount which, together with all other dividends on
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds fifty percent
(50%) of the net income of the Corporation available for
dividends on the Common Stock for the twelve (12) full calendar
months immediately preceding the month in which such dividend is
declared, except that the Corporation may at any time declare a
dividend in an amount not exceeding the aggregate of dividends on
Common Stock which under the restrictions set forth above in this
subparagraph (A) could have been, and have not been, declared;
and
(B) If and so long as the Common Stock Equity at
the end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a result
of such dividend would become, less than twenty-five percent
(25%) but not less than twenty percent (20%) of Total
Capitalization, the Corporation shall not declare such dividend
on the Common Stock in an amount which, together with all other
dividends on Common Stock paid within the year ending with and
including the date on which such dividend is payable, exceeds
seventy-five percent (75%) of the net income of the Corporation
available for dividends on the Common Stock for the twelve (12)
full calendar months immediately preceding the month in which
such dividend is, declared, except that the Corporation may at
any time declare dividends in an amount not exceeding the
aggregate of dividends on Common Stock which under the
restrictions set forth above in subparagraph (A) and in this
subparagraph (B) could have been, and have not been, declared;
and
(C) At any time when the Common Stock Equity is
twenty-five percent (25%) or more of Total Capitalization, the
Corporation may not declare dividends on shares of the Common
Stock which would reduce the Common Stock Equity below twenty-
five percent (25%) of Total Capitalization, except to the extent
provided in subparagraphs (A) and (B) above.
At any time when the aggregate of all amounts credited
subsequent to January 1, 1954 to the depreciation reserve account
of the Corporation through charges to operating revenue
deductions or otherwise on the books of the Corporation (other
than transfers out of the balance of surplus as of December 31,
1953) shall be less than the amount computed as provided in
clause (i) below, under requirements contained in the
Corporation's mortgage indentures, then for the purposes of
subparagraphs (A) and (B) above, in determining the earnings
available for Common Stock dividends during any twelve-month
period, the amount to be provided for depreciation in that period
shall be (i) the greater of the cumulative amount charged to
depreciation expense on the books of the Corporation or the
cumulative amount computed under requirements contained in the
Corporation's mortgage indentures relating to minimum
depreciation provisions (the latter cumulative amount being the
aggregate of the largest amounts separately computed for entire
periods of differing coexisting mortgage indenture requirements)
for the period from January l, 1954 to and including any such
twelve-month period, less (ii) the greater of the cumulative
amount charged to depreciation expense on the books of the
Corporation or the cumulative amount computed under requirements
contained in the Corporation's mortgage indentures relating to
minimum depreciation provisions (the latter cumulative amount
being the aggregate of the largest amounts separately computed
for entire periods of differing coexisting mortgage indenture
requirements) from January l, 1954 up to but excluding any such
twelve-month period; provided that in the event any company is
merged into the Corporation the "cumulative amount computed under
requirements contained in the Corporation's mortgage indentures
relating to minimum depreciation provisions" referred to above
shall be computed without regard, for the period prior to the
merger, of property acquired in the merger, and the "cumulative
amount charged to depreciation expense on the books of the
Corporation" shall be exclusive of amounts provided for such
property prior to the merger.
(9) Dividends may be paid upon the Common Stock only
when (i) dividends have been paid or declared and funds set apart
for the payment of dividends as aforesaid on the Preferred Stock
from the date(s) after which dividends thereon became cumulative,
to the beginning of the period then current, with respect to
which such dividends on the Preferred Stock are usually declared,
and (ii) all payments have been made or funds have been set aside
for payments then or theretofore due under the terms of sinking
fund requirements (if any) for the purchase or redemption of
shares of any series of the Preferred Stock, but whenever (a)
there shall have been paid or declared and funds shall have been
set apart for the payment of all such dividends upon the
Preferred Stock as aforesaid and (b) all payments shall have been
made or funds shall have been set aside for payments then or
theretofore due under the terms of sinking fund requirements (if
any) for the purchase or redemption of shares of any series of
the Preferred Stock, then, subject to the limitations above set
forth, dividends upon the Common Stock may be declared payable
then or thereafter, out of funds legally available for payment of
dividends. After the payment of the limited dividends and/or
shares in distribution of assets to which the Preferred Stock is
expressly entitled in preference to the Common Stock, the Common
Stock (subject to the rights of any class of stock hereafter
authorized) shall receive all further dividends and shares in
distribution.
(10) Subject to the limitations hereinabove set forth,
the Corporation, from time to time, may resell any of its own
stock, purchased or otherwise acquired by it as hereinafter
provided for, at such price as may be fixed by its Board of
Directors.
(11) Subject to the limitations hereinabove set forth,
the Corporation, in order to acquire funds with which to redeem
any outstanding Preferred Stock of any class, may issue and sell
stock of any class then authorized but unissued, bonds, notes,
evidences of indebtedness, or other securities.
(12) Subject to the limitations hereinabove set forth,
and except to the extent that conversions, participations or
other special rights are established with respect to any series
of Preferred Stock by the Board of Directors as hereinabove
provided, the Board of Directors of the Corporation may at any
time authorize the conversion or exchange of the whole or any
particular part of the outstanding Preferred Stock of any class,
with the consent of the holders thereof, into or for stock of any
other class at the time of such consent authorized but unissued
and may fix the terms and conditions upon which such conversion
or exchange may be made; provided that without the consent of the
holders of record of two-thirds (2/3) of the votes represented by
shares of Common Stock outstanding given at a meeting of the
holders of the Common Stock called and held as provided by the
Bylaws or given in writing without a meeting, the Board of
Directors shall not authorize the conversion or exchange of any
Preferred Stock of any class into or for Common Stock or
authorize the conversion or. exchange of any Preferred Stock of
any class into or for Preferred Stock of any other class if by
such conversion or exchange the amount which the holders of the
shares of stock so converted or exchanged would be entitled to
receive either as dividends or shares in distribution of assets
in preference to the Common Stock would be increased.
(13) A consolidation, merger or amalgamation of the
Corporation with or into any other corporation or corporations
shall not be deemed a distribution of assets of the Corporation
within the meaning of any provisions of these Amended and
Restated Articles of Incorporation.
(14) If any provision in this Article FIFTH shall be
in conflict or inconsistent with any other provision of these
Amended and Restated Articles of Incorporation, the provisions of
this Article FIFTH shall prevail and govern.
(15) No holder of any stock of the Corporation shall
be entitled as of right to purchase or subscribe for any part of
any stock of the Corporation authorized by these Amended and
Restated Articles of Incorporation or of any additional stock of
any class to be issued by reason of any increase of the
authorized capital stock of the Corporation or of any bonds,
certificates of indebtedness, debentures or other securities
convertible into stock of the Corporation.
(16) 70,000 shares of the Corporation's $100 Preferred
Stock authorized in paragraph (a) of this Article FIFTH shall
consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be designated "4.32% Preferred Stock,
Cumulative, $100 Par Value";
(B) have a dividend rate of $4.32 per share per
annum payable quarterly on January 1, April 1, July 1, and
October 1 of each year, the first dividend date to be July 1,
1954 and such dividend date to be July 1, 1954 and such dividends
to be cumulative from April 1, 1954; and
(C) be subject to redemption in the manner
provided with respect to the Corporation's Preferred Stock,
Cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $106.147 per share if
redeemed on or before April 1, 1959 and on or before April 1,
1964, and of $103.647 per share if redeemed after April 1, 1964,
in each case plus an amount equivalent to the accumulated and
unpaid dividends thereon, if any, to the date fixed for
redemption.
(17) 93,500 shares of the Corporation's $100 Preferred
Stock authorized in paragraph (a) of this Article FIFTH shall
consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be designated "4.72% Preferred Stock,
Cumulative, $100 par value";
(B) have a dividend rate of $4.72 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be July 1, 1955 and
such dividends to be cumulative from April 1, 1955;
(C) be subject to redemption in the manner
provided with respect to the Corporation's Preferred Stock,
Cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $109.50 per share if redeemed
on or before April 1, 1960, of $108.50 per share if redeemed
after April 1, 1960 and on or before April 1, 1965, in each case
plus an amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date fixed for redemption; and
(D) be issued for cash or on a share for share
basis for shares of the $7 Preferred Stock and $6 Preferred Stock
of the Corporation which may be converted into or exchanged for
such shares of 4.72% Preferred Stock, Cumulative, $100 par value,
with a cash adjustment of $5.36 per share to be given to the
holders of the $7 Preferred Stock and a cash adjustment of $5.20
per share to be given to the holders of $6 Preferred Stock so
converting or exchanging.
(18) 75,000 shares of the Corporation's $100 Preferred
Stock authorized in paragraph (a) of this Article FIFTH shall
consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be designated "4.56% Preferred Stock,
Cumulative, $100 par value";
(B) have a dividend rate of $4.56 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be January 1, 1965 and
such dividends to be cumulative from October 1, 1964; and
(C) be subject to redemption in the manner
provided with respect to the Corporation's Preferred Stock,
Cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $105.89 per share if redeemed
on or before October 1, 1969, or $104.33 per share if redeemed
after October 1, 1969 and on or before October 1, 1974, and of
$102.83 per share if redeemed after October 1, 1974, in each case
plus an amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date fixed for redemption;
(19) 75,000 shares of the Corporation's $100 Preferred
Stock authorized in paragraph (a) of this Article FIFTH shall
consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) consist of 75,000 shares to be designated
"4.56% Preferred Stock, Cumulative, $100 par value (1965
Series)":
(B) have a dividend rate of $4.56 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be July 1, 1965, and
such dividends to be cumulative from April 1, 1965; and
(C) be subject to redemption in the manner
provided with respect to the Company's Preferred Stock,
cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $105.56 per share if redeemed
on or before April 1, 1970, of $104.00 per share if redeemed
after April 1, 1970 and on or before April 1, 1975, and of
$102.50 per share if redeemed after April 1, 1975, in each case
plus an amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date fixed for redemption;
(20) 100,000 shares of the Corporation's $100
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be designated "6.08% Preferred Stock,
cumulative, $100 par value";
(B) have a dividend rate of $6.08 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be January 1, 1967 and
such dividends to be cumulative from October 1, 1966; and
(C) be subject to redemption in the manner provided with respect
to the Company's Preferred Stock, cumulative $100 par value, in
said Agreement of Consolidation or Merger, as amended, at the
price of $107.41 per share if redeemed on or before October 1,
1971, of $104.33 per share if redeemed after October 1, 1971 and
on or before October 1, 1976, and of $102.83 per share if
redeemed after October 1, 1976 in each case plus an amount
equivalent to the accumulated and unpaid dividends thereon, if
any, to the date fixed for redemption;
(21) 100,000 shares of the Corporation's $100
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be designated "7.32% Preferred Stock,
cumulative, $100 par value";
(B) have a dividend rate of $7.32 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be April 1, 1969 and
such dividends to be cumulative from January 1, 1969; and
(C) be subject to redemption in the manner provided with respect
to the Company's Preferred Stock, cumulative, $100 par value, in
said Agreement of Consolidation or Merger, as amended, at the
price of $108.99 per share if redeemed on or before January 1,
1974, of $104.67 per share if redeemed after January 1, 1974 and
on or before January 1, 1979, and of $103.17 per share if
redeemed after January 1, 1979, in each case plus an amount
equivalent to the accumulated and unpaid dividends thereon, if
any, to the date fixed for redemption;
(22) 150,000 shares of the Corporation's $100
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be designated "7.80% Preferred Stock,
cumulative, $100 par value";
(B) have a dividend rate of $7.80 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be July 1, 1972 and
such dividends to be cumulative from April 13, 1972; and
(C) be subject to redemption in the manner provided with respect
to the Company's Preferred Stock, cumulative, $100 par value, in
said Agreement of Consolidation or Merger, as amended, at the
price of $109.10 per share if redeemed on or before April 1, 1977
(except that no share of the 7.80% Preferred Stock shall be
redeemed before April 1, 1977 if such redemption is for the
purpose or in anticipation of refunding such share through the
use, directly or indirectly, of funds borrowed by the Company or
through the use, directly or indirectly, of funds derived through
the issuance by the Company of stock ranking prior to or on a
parity with the 7.80%A Preferred Stock as to dividends or assets,
if such borrowed funds have an effective interest cost to the
Company (computed in accordance with generally accepted financial
practice) or such stock has an effective dividend cost to the
Company (so computed) of less than 7.785% per annum, of $107.15
per share if redeemed after April 1, 1977, and on or before April
1, 1982, of $105.20 per share if redeemed after April 1, 1982,
and on or before April 1, 1987, and of $103.25 per share if
redeemed after April 1, 1987, in each case plus an amount
equivalent to the accumulated and unpaid dividends thereon, if
any, to the date fixed for redemption;
(23) 200,000 shares of the Corporation's $100
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) consist of 200,000 shares to be designated
"7.40% Preferred Stock, cumulative, $100 par value";
(B) have a dividend rate of $7.40 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be April 1, 1973, for
the period commencing December 14, 1972, to and including March
31, 1973, and such dividends to be cumulative from December 14,
1972; and
(C) be subject to redemption in the manner
provided with respect to the Company's Preferred Stock,
cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $108.35 per share if redeemed
on or before December 1, 1977 (except that no share of the 7.40%
Preferred Stock shall be redeemed before December 1, 1977, if
such redemption is for the purpose or in anticipation of
refunding such share through the use, directly or indirectly, of
funds borrowed by the Company or through the use, directly or
indirectly, of funds derived through the issuance by the Company
of stock ranking prior to or on a parity with the 7.40% Preferred
Stock as to dividends or assets, if such borrowed funds have an
effective interest cost to the Company (computed in accordance
with generally accepted financial practice) or such stock has an
effective dividend cost to the Company (so computed) of less than
7.3795% per annum, of $106.50 per share if redeemed after
December 1, 1977 and on or before December 1, 1982 of $104.65 per
share if redeemed after December 1, 1982, and on or before
December 1, 1987, in each case plus an amount equivalent to the
accumulated and unpaid dividends thereon, if any, to the date
fixed for redemption;
(24) 150,000 shares of the Corporation's $100
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) consist of 150,000 shares to be designated
"7.88% Preferred Stock, cumulative, $100 par value";
(B) have a dividend rate of $7.88 per share per
annum payable quarterly on January 1, April 1, July 1, and
October 1 of each year, the first dividend date to be April 1,
1974, for the period commencing December 6, 1973, to and
including March 31, 1974, and such dividends to be cumulative
from December 6, 1973; and
(C) be subject to redemption in the manner
provided with respect to the Company's Preferred Stock,
cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $108.91 per share if redeemed
on or before December 1, 1978 (except that no share of the 7.88%
Preferred Stock shall be redeemed before December 1, 1978, if
such redemption is for the purpose or in anticipation of
refunding such share through the use, directly or indirectly, of
funds borrowed by the Company or through the use, directly or
indirectly, of funds derived through the issuance by the Company
of stock ranking prior to or on a parity with the 7.88% Preferred
Stock as to dividends or assets, if such borrowed funds have an
effective interest cost to the Company (computed in accordance
with generally accepted financial practice) or such stock has an
effective dividend cost to the Company (so computed) of less than
7.853% per annum, of $106.94 per share if redeemed after December
1, 1978 and on or before December 1, 1983 of $104.97 per share if
redeemed after December 1, 1983, and on or before December 1,
1988, in each case plus an amount equivalent to the accumulated
and unpaid dividends thereon, if any, to the date fixed for
redemption;
(25) 1,600,000 shares of the Corporation's $25
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the $25 Preferred Stock of the
Corporation which shall:
(A) consist of 1,600,000 shares to be designated
"9.92% Preferred Stock, cumulative, $25 par value" and
hereinafter be referred to as "2nd 1979 Series Preferred Stock";
(B) have a dividend rate of $2.48 per share per
annum payable quarterly on January 1, April 1, July 1, and
October 1 of each year, the first dividend date to be October 1,
1979, and such dividends to be cumulative from June 28, 1979;
(C) be subject to redemption in the manner
provided with respect to the Company's Preferred Stock,
cumulative, $25 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $28.18 per share if redeemed
on or before June 1, 1984 (except that no share of the 2nd 1979
Series Preferred Stock shall be redeemed before June 1, 1984, if
such redemption is for the purpose of or in anticipation of
refunding such share through the use, directly or indirectly, of
funds borrowed by the Company or through the use, directly or
indirectly, of funds derived through the issuance by the Company
of stock ranking prior to or on a parity with the Preferred Stock
as to dividends or assets, if such borrowed funds have an
effective interest cost to the Company (computed in accordance
with generally accepted financial practice ) or such stock has an
effective dividend cost to the Company (so computed) of less than
9.8086 per annum), of $27.56 per share if redeemed after June 1,
1984, and on or before June 1, 1989, of $26.94 per share if
redeemed after June 1, 1989, and on or before June 1, 1994, and
of $26.32 per share if redeemed after June 1, 1994, in each case
plus an amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date fixed for redemption; and
(D) be subject to redemption as and for a sinking
fund as follows:
On June 1, 1984 and on each June 1 thereafter (each
such date being hereinafter referred to as a "2nd 1979 Series
Sinking Fund Redemption Date"), for so long as any shares of the
2nd 1979 Series Preferred Stock shall remain outstanding, the
Company shall redeem, out of funds legally available therefor and
otherwise in the manner provided with respect to the Company's
Preferred Stock, cumulative, $25 par value, in said Agreement of
Consolidation or Merger, as amended, 80,000 shares of the 2nd
1979 Series Preferred Stock (or the number of shares then
outstanding if less than 80,000) at the sinking fund redemption
price of $25 per share plus, as to each share so redeemed, an
amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date of redemption (the obligation of the
Company so to redeem the shares of the 2nd 1979 Series Preferred
Stock being hereinafter referred to as the "2nd 1979 Series
Sinking Fund Obligation") . The 2nd 1979 Series Sinking Fund
Obligation shall be cumulative. If on any 2nd 1979 Series
Sinking Fund Redemption Date, the Company shall not have funds
legally available therefor sufficient to redeem the full number
of shares required to be redeemed on that date, the 2nd 1979
Series Sinking Fund Obligation with respect to the shares not
redeemed shall carry forward to each successive 2nd 1979 Series
Sinking Fund Redemption Date until such shares shall have been
redeemed. Whenever on any 2nd 1 97g Series Sinking Fund
Redemption Date, the funds of the Company legally available for
the satisfaction of the 2nd 1979 Series Sinking Fund Obligation
and all other sinking fund and similar obligations then existing
with respect to any other class or series of its stock ranking on
a parity as to dividends or assets with the 2nd 1979 Series
Preferred Stock (such Obligation and obligations collectively
being hereinafter referred to as the "Total Sinking Fund
Obligation") are insufficient to permit the Company to satisfy
fully its Total Sinking Fund Obligation on that date, the Company
shall apply to the satisfaction of its 2nd 1979 Series Sinking
Fund Obligation on that date that proportion of such legally
available funds which is equal to the ratio of such 2nd 1979
Series Sinking Fund Obligation to such Total Sinking Fund
Obligation. In addition to the 2nd 1979 Series Sinking Fund
Obligation, the Company shall have the option, which shall be non-
cumulative, to redeem, upon authorization of the Board of
Directors and otherwise in the manner provided with respect to
the Company's Preferred Stock, cumulative, $25 par value, in said
Agreement of Consolidation or Merger, as amended, on each 2nd
1979 Series Sinking Fund Redemption Date, at the aforesaid
sinking fund redemption price, up to 80,000 additional shares of
the 2nd 1979 Series Preferred Stock. The Company shall be
entitled, at its election, to credit against its 2nd 1979 Series
Sinking Fund Obligation on any 2nd 1979 Series Sinking Fund
Redemption Date any shares of the 2nd 1979 Series Preferred Stock
(including shares of the 2nd 1979 Series Preferred Stock
optionally redeemed pursuant to this paragraph (d)) theretofore
redeemed, other than shares of 2nd 1979 Series Preferred Stock
redeemed pursuant to the 2nd 1979 Series Sinking Fund Obligation,
purchased or otherwise acquired and not previously credited
against the 2nd 1979 Series Sinking Fund Obligation;
(26) 500,000 shares of the Corporation's $100
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) consist of 500,000 shares to be designated
"8.52% Preferred Stock, cumulative, $100 par value" and
hereinafter to be referred to as the "1986 Series Preferred
Stock";
(B) have a dividend rate of $8.52 per share per
annum payable quarterly on January 1, April 1, July 1, and
October 1, of each year, the first dividend date to be January 1,
1987, and such dividends to be cumulative from the date of
issuance;
(C) be subject to redemption in the manner
provided with respect to the Company's Preferred Stock,
cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, at the price of $108.52 per share if redeemed
on or before November 1, 1991 (except that no share of the 1986
Series Preferred Stock shall be redeemed before November 1, 1991,
if such redemption is for the purpose of or in anticipation of
refunding such share through the use, directly or indirectly, of
funds borrowed by the Company or through the use, directly or
indirectly, of funds derived through the issuance by the Company
of stock ranking prior to or on a parity with the 1986 Series
Preferred Stock as to dividends or assets, if such borrowed funds
have an effective interest cost to the Company (computed in
accordance with generally accepted financial practice) or such
stock has an effective dividend cost to the Company (so computed)
of less than 8.780% per annum), of $106.39 per share if redeemed
after November 1, 1991, and on or before November 1, 1996, of
$104.26 per share if redeemed after November 1, 1996, and on or
before November 1, 2001, and of $102.13 per share if redeemed
after November 1, 2001, in each case plus an amount equivalent to
the accumulated and unpaid dividends thereon, if any, to the date
fixed for redemptions and
(D) be subject to redemption as and for a sinking
fund as follows: on November 1, 1991 and on each November 1
thereafter (each such date bring hereinafter referred to as a
1986 Series Sinking Fund Redemption Date"), for so long as any
shares of the 1986 Series Preferred Stock shall remain
outstanding,; the Company shall redeem, out of funds legally
available therefor and otherwise in the manner provided with
respect to the Company's Preferred Stock, cumulative, $100 par
value, in said Agreement of Consolidation or Merger, as amended,
25,000 shares of the 1986 Series Preferred Stock (or the number
of shares then outstanding if less than 25,000) at the sinking
fund redemption price of $100 per share plus, as to each share so
redeemed, an amount equivalent to the accumulated and unpaid
dividends thereon, if any, to the date of redemption (the
obligation of the Company so to redeem such shares of the 1986
Series Preferred Stock being hereinafter referred to as the "1986
Series Sinking Fund Obligation"); the 1986 Series Sinking Fund
Obligation shall be cumulative; if on any 1986 Series Sinking
Fund Redemption Date, the Company shall not have funds legally
available therefor sufficient to redeem the full number of shares
required to be redeemed on that date, the 1986 Series Sinking
Fund Obligation with respect to the shares not redeemed shall
carry forward to each successive l986 Series Sinking Fund
Redemption Date until such shares shall have been redeemed;
whenever on any 1986 Series Sinking Fund Redemption Date, the
funds of the Company legally available for the satisfaction of
the 1986 Series Sinking Fund Obligation and all other sinking
fund and similar obligations then existing with respect to any
other class or series of its stock ranking on a parity as to
dividends or assets with the 1986 Series Preferred Stock (such
obligation and obligations collectively being hereinafter
referred to as the "Total Sinking Fund Obligation") are
insufficient to permit the Company to satisfy fully its Total
Sinking Fund Obligation on that date, the Company shall apply to
the satisfaction of its 1986 Series Sinking Fund Obligation on
that date that proportion of such legally available funds which
is equal to the ratio of such 1986 Series Sinking Fund Obligation
to such Total Sinking Fund Obligation; in addition to the 1986
Series Sinking Fund Obligation, the Company shall have the
option, which shall be non-cumulative, to redeem, upon
authorization of the Board of Directors and otherwise in the
manner provided with respect to the Company's Preferred Stock,
cumulative, $100 par value, in said Agreement of Consolidation or
Merger, as amended, on each 1986 Series Sinking Fund Redemption
Date, at the aforesaid sinking fund redemption price, up to
25,000 additional shares of the 1986 Series Preferred Stock; the
Company shall be entitled, at its election, to credit against its
1986 Series Sinking Fund Obligation on any 1986 Series Sinking
Fund Redemption Date any shares of the 1986 Series Preferred
Stock, (including shares of the 1986 Series Preferred Stock
optionally redeemed pursuant to this paragraph (d)), theretofore
redeemed (other than shares of the 1986 Series Preferred Stock
redeemed pursuant to the 1986 Series Sinking Fund Obligation)
purchased or otherwise acquired and not previously credited
against the 1986 Series Sinking Fund Obligation; and further
(27) 600,000 shares of the Corporation's Class A
Preferred Stock authorized in paragraph (a) of this Article FIFTH
shall consist of a series of the Class A Preferred Stock of the
Corporation which shall:
(A) be designated "$l.96 Preferred Stock,
Cumulative, $0.01 Par Value (Involuntary Liquidation Value $25)"
and hereinafter be referred to as the "1992 Series Preferred
Stock";
(B) have a price payable on involuntary
liquidation, dissolution or winding up of the Corporation of $25
per share;
(C) have a dividend rate of $1.96 per share per
annum payable quarterly on January 1, April 1, July 1 and October
1 of each year, the first dividend date to be July 1, 1992, and
such dividends to be cumulative from June 3, 1992; and
(D) be subject to redemption in the manner
provided with respect to the Corporation's Preferred Stock in the
Corporation's Amended and Restated Articles Or Incorporation at
the price of $25 per share plus an amount equivalent to the
accumulated and unpaid dividends thereon, if any, to the date
fixed for redemption (except that no share of the 1992 Series
Preferred Stock shall be redeemed on or before July 1, 1997;
however, such price of $25 per share is established
notwithstanding such limitation on redemption as the current
redemption price for the period on or before July 1, 1997 for
purposes of subparagraph (6) of paragraph (c) of Article FIFTH).
SIXTH: Director Conflict of Interest.
(a) A conflict of interest transaction is a transaction
with the Corporation in which a director of the Corporation has a
direct or indirect interest. A conflict of interest transaction
is not voidable by the Corporation solely because of the
director's interest in the transaction if any one of the
following is true:
(1) The material facts of the transaction and the
director's interest were disclosed or known to the Board of
Directors or a committee of the Board of Directors and the Board
of Directors or committee authorized, approved, or ratified the
transaction
(2) The material facts of the transaction and the
director's interest were disclosed or known to the holders of
Common Stock and the transaction was authorized, approved, or
ratified by the vote of the holders of a majority of the votes
entitled to be cast by the Common Stock; or
(3) The transaction was fair to the Corporation.
(b) For purposes of this Article SIXTH, a director of the
Corporation has an indirect interest in a transaction and the
transaction should be considered by the Board of Directors of the
Corporation if:
(1) Another entity in which the director has a
material financial interest or in which the director is a general
partner is a party to the transaction; or
(2) Another entity of which the director is a
director, officer, or trustee is a party to the transaction.
SEVENTH: Board of Directors.
(a) The affairs and business of the Corporation shall be
conducted and controlled by a Board of Directors, and the number
of directors which shall constitute the whole Board shall be such
as from time to time shall be fixed by resolution adopted by the
holders of Common Stock or by the Board of Directors, but in no
case shall the number of directors be less than three (3) nor
more than fifteen (15). Directors shall be elected by the
holders of Common Stock except as provided in Article FIFTH (c)
(2) at each annual meeting of the stockholders and each director
so elected shall hold office until the next annual meeting of the
stockholders or until his successor is elected and qualified,
except as herein provided. All stockholders entitled to vote for
the election of directors may cumulate their votes for directors.
Any or all directors elected by the holders of Common Stock may
at any time be removed without cause by the vote of the holders
of a majority of the votes entitled to be cast by the Common
Stock given at a meeting called for the purpose of considering
such action, and the successor of any director so removed shall
be elected by the holders of Common Stock at such meeting or at a
later meeting. Any or all directors elected by the holders of
Preferred Stock may at any time be removed without cause by the
vote of the holders of a majority of the votes entitled to be
cast by the Preferred Stock given at a meeting called for the
purpose of considering such action, and the successor of any
director so removed shall be elected by the holders of Preferred
Stock at such meeting or at a later meeting; provided, however, a
director may not be removed without cause if the number of votes
sufficient to elect him under cumulative voting is voted against
his removal. Except as provided in Article FIFTH (c) (2),
vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled as
provided in the By-Laws. If the vacant office was held by a
director elected by a voting group of shareholders, only the
holders of shares of that voting group shall be entitled to
participate in the filling of such vacancy. If the number of
directors is decreased then to the extent that the decrease does
not exceed the number of vacancies in the Board then existing,
such resolution may provide that it shall become effective
forthwith, and to the extent that the decrease does exceed such
number of vacancies, such resolution shall provide that it shall
not become effective until the next election of directors by the
stockholders. The Board of Directors shall have power to hold
their meetings, to have one or more offices and to keep the
corporate books (except such books as are required by law to be
kept within the state of Arkansas) outside of the State of
Arkansas at such places as may from time to time be designated by
them. The Board of Directors shall elect individuals to occupy
executive offices as provided in the By-Laws.
(b) The Board of Directors shall have power to authorize
and cause to be executed mortgages or deeds of trust which shall
cover and create a lien upon, or otherwise encumber, all or any
part of the property of the Corporation of whatsoever kind and
wheresoever situated whether then owned or thereafter acquired
and to provide in any such mortgage or deed of trust that the
amount of bonds or other evidences of indebtedness to be issued
thereunder and to be secured thereby shall be limited to a
definite amount or limited only by the conditions therein
specified and to issue or cause to be issued by the Corporation
the bonds or other evidences of indebtedness to be secured
thereby.
EIGHTH: Limitation of Director Liability.
(a) To the fullest extent permitted by the Arkansas
Business Corporation Act, as currently in effect or as hereafter
may be amended or modified, or any other applicable law presently
or hereafter in effect, no director of the Corporation shall be
personally liable to the Corporation or its shareholders for
monetary damages for or with respect to any acts or omissions in
the performance of his duties.
(b) Any repeal or modification of the foregoing
subparagraph by the shareholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
NINTH: Indemnification.
(a) Every person who is or was an officer, director or
employee of the Corporation and who also is or was a party or is
threatened to be made a party to or is involved in any
threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative or by
or in the right of the Corporation, by reason of the fact that he
is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director
or officer of another corporation, or as its representative in a
partnership, joint venture, trust, or other enterprise, shall be
indemnified and. held harmless to the fullest extent legally
permissible under and pursuant to the Arkansas Business
Corporation Act, as currently in effect or as hereafter may be
amended or modified, but in the case of any such amendment, only
to the extent that such amendment permits the Corporation to give
broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment. Such right of
indemnification shall be a contract right that may be enforced in
any lawful manner by such person. Such right of indemnification
shall not be exclusive of any other right which such director,
officer or employee may have or hereafter acquire and, without
limiting the generality of such statement, he shall be entitled
to his rights of indemnification under any agreement, vote of
shareholders, provision of law, or otherwise, as well as his
rights under this Article NINTH.
(b) Expenses incurred by any person who is or was an
officer, director or employee of the Corporation in defending a
civil, criminal, administrative, or investigative action, suit or
proceeding by reason of the fact that he is or was a director,
officer or employee of the Corporation or was serving at the
Corporation's request as a director or officer of another
corporation or as its representative in a partnership, joint
venture, trust or other enterprise shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding to the fullest extent legally permissible
under and pursuant to the Arkansas Business Corporation Act, as
currently in effect or as hereafter may be amended or modified,
but in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader rights
to payment of expenses than said law permitted the Corporation to
provide prior to such amendment. Such right to payment of
expenses shall be a contract right that may be enforced in any
lawful manner by such person.
(c) If any provision of this Article NINTH or the
application thereof to any person or circumstance is adjudicated
invalid, such invalidity shall not affect other provisions or
applications of this Article NINTH which lawfully can be given
without the invalid provision or application.
TENTH: Bylaws. The present by-laws of the Corporation
shall continue to be the by-laws of the Corporation until changed
or amended as therein or herein or by law provided.
ELEVENTH: Incorporators. The names of the incorporators of
the Corporation, as set forth in the Agreement of Consolidation
or Merger dated October 13, 1926, which information is provided
herein for informational purposes only, are as follows:
C. D. Cherry
W. H. Holmes
Ray Gibson
DATED: November 11, 1999
Entergy Arkansas, Inc.
/s/ Steven C. McNeal
Steven C. McNeal
Vice President and
Treasurer
/s/ Christopher T. Screen
Christopher T. Screen
Assistant Secretary