RESTATED CERTIFICATE OF INCORPORATION
OF
MDU RESOURCES GROUP, INC.
MDU RESOURCES GROUP, INC. (formerly known as Montana-
Dakota Utilities Co. and originally incorporated as Minnesota
Northern Power Co.) hereby restates its Certificate of
Incorporation filed with the Secretary of State of the State of
Delaware on March 14, 1924. This Restated Certificate of
Incorporation merely restates and integrates, but does not
further amend, the Certificate of Incorporation, as heretofore
amended or supplemented, and there is no discrepancy between
those provisions and the provisions of this Restated Certificate
of Incorporation. This Restated Certificate of Incorporation is
duly adopted by the Board of Directors of MDU Resources Group,
Inc. ("Corporation") in accordance with Section 245 of the
Delaware General Corporation Law.
FIRST. The name of this Corporation is MDU RESOURCES
GROUP, INC. (the "Corporation").
SECOND. The registered office of the Corporation in
the State of Delaware is located at 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust
Company.
THIRD. The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
Included within this purpose, without limiting the generality of
the foregoing sentence is (1) to own and operate electric and gas
public utility systems and (2) to transact business as a
multidimensional natural resource company.
The Corporation shall have and exercise all the powers
conferred upon corporations by the General Corporation Law of
Delaware.
FOURTH. The total number of shares of stock which the
Corporation shall have authority to issue is Two Hundred Fifty-
Two Million (252,000,000) divided into four classes, namely,
Preferred Stock, Preferred Stock A, Preference Stock, and Common
Stock. The total number of shares of such Preferred Stock
authorized is Five Hundred Thousand (500,000) shares of the par
value of One Hundred Dollars ($100) per share (hereinafter called
the "Preferred Stock") amounting in the aggregate to Fifty
Million Dollars ($50,000,000). The total number of shares of
such Preferred Stock A authorized is One Million (1,000,000)
shares without par value (hereinafter called the "Preferred Stock
A"). The total number of shares of such Preference Stock
authorized is Five Hundred Thousand (500,000) shares without par
value (hereinafter called the "Preference Stock"). The total
number of shares of such Common Stock authorized is Two Hundred
Fifty Million (250,000,000) of the par value of One and no/100
Dollars ($1.00) per share (hereinafter called the "Common
Stock"), amounting in the aggregate to Two Hundred Fifty Million
Dollars ($250,000,000).
The Preferred Stock and the Preferred Stock A shall
rank equally with no preference or priority of the Preferred
Stock over the Preferred Stock A or of the Preferred Stock A over
the Preferred Stock with respect to earnings, and assets upon
liquidation, dissolution or winding up of the Corporation, and
the Preferred Stock and the Preferred Stock A shall be senior to
the Preference Stock with respect to earnings, and assets upon
liquidation, dissolution or winding up of the Corporation, and
the Preference Stock in turn shall be senior to the Common Stock
with respect thereto.
The description of such classes of stock, and the
designations and the powers, preferences and rights and the
qualifications, limitations or restrictions thereof are as
follows:
1. The Preferred Stock may be issued from time to time
either (a) as Preferred Stock of a series to be designated
4.50% Series Preferred Stock, or (b) if so determined from
time to time by resolution or resolutions adopted by the
Board of Directors either in whole or in part as one or more
other series, each series to be appropriately designated by
distinguishing number, letter or title prior to the issue of
any shares thereof. One Hundred Thousand (100,000) shares of
the Preferred Stock are hereby designated as 4.50% Series
Preferred Stock. The number of shares of the Preferred
Stock so designated as 4.50% Series Preferred Stock may be
increased (but not above the number of shares then
authorized) or decreased (but not below the number of shares
thereof then outstanding) by a resolution or resolutions
adopted by the Board of Directors in the same manner as the
Board may by resolution create other series of the Preferred
Stock.
2. The Preferred Stock of all series shall be of the
same class and of equal rank and shall be identical in all
respects except that
(a) the maximum dividend rate of the 4.50% Series
Preferred Stock shall be four and fifty hundredths
per cent (4.50%) per annum, and the maximum
dividend rate of the Preferred Stock of each other
series shall be such rate as shall have been fixed
and determined by the Board of Directors to accrue
in respect of the shares of stock of each such
other series from a date to be determined as
hereinafter provided;
(b) the amount per share which the Preferred Stock
shall be entitled to receive as a premium in case
of the redemption thereof shall be Five Dollars
($5.00) per share in the case of the 4.50% Series
Preferred Stock, and in the case of each other
series of the Preferred Stock shall be such
amount, if any, as shall have been fixed and
determined by the Board of Directors;
(c) a sinking fund or other retirement obligation may
be provided for each series of the Preferred
Stock, other than the 4.50% Series Preferred
Stock, at such rate and on such terms as shall
have been fixed and determined by the Board of
Directors in respect of the shares of stock of
each such series;
(d) the shares of each series of the Preferred Stock,
other than the 4.50% Series Preferred Stock, may
be made convertible into, or exchangeable for,
shares of any other class or classes, or of any
other series of the same or of any other class or
classes, of stock of the Corporation, at such
price or prices, or at such rates of exchange and
with such adjustments as shall have been fixed and
determined by the Board of Directors in respect of
the shares of stock of each such series; and
(e) the shares of each series of the Preferred Stock,
other than the 4.50% Series Preferred Stock, shall
possess such voting power, in addition to that
provided for in paragraph 13, as shall have been
fixed and determined by the Board of Directors in
respect of the shares of stock of each such
series.
The description and terms of the Preferred Stock of
each series in the foregoing particulars (except as in this
section fixed and determined in respect of the 4.50% Series
Preferred Stock) shall be fixed and determined by the Board
of Directors at the time of the authorization of the issue
of the original shares of each such other series. All
shares of each series shall be alike in every particular.
3. The Preferred Stock A may be issued from time to
time by resolution or resolutions adopted by the Board of
Directors, either in whole or in part as one or more series,
each series to be appropriately designated by distinguishing
number, letter or title prior to the issue of any shares
thereof.
4. The Preferred Stock A of all series shall be of the
same class and of equal rank and shall be identical in all
respects except that
(a) the maximum dividend rate of the Preferred Stock A
of each series shall be such rate as shall have
been fixed and determined by the Board of
Directors to accrue in respect of the shares of
stock of each such series from a date to be
determined as hereinafter provided;
(b) the terms and conditions on which the shares of
each series may be redeemed and in the amount or
amounts per share which the Preferred Stock A of
each series shall be entitled to receive in case
of the redemption thereof shall be such as shall
have been fixed and determined by the Board of
Directors for each such series;
(c) the amount per share which the Preferred Stock A
of each series shall be entitled to receive in the
event of any liquidation, dissolution or winding
up of this Corporation, whether voluntary or
involuntary, shall be such amount as shall have
been fixed and determined by the Board of
Directors for such purpose for each such series;
(d) a sinking fund or other retirement obligation may
be provided for any or all series of the Preferred
Stock A, at such rate and on such terms as shall
have been fixed and determined by the Board of
Directors in respect of the shares of stock of
each such series;
(e) the shares of any or all series of the Preferred
Stock A may be made convertible into, or
exchangeable for, shares of any other class or
classes, or of any other series of the same or of
any other class or classes, of stock of the
Corporation, at such price or prices, or at such
rates of exchange and with such adjustments as
shall have been fixed and determined by the Board
of Directors in respect of the shares of stock of
each such series; and
(f) the shares of each series of the Preferred Stock A
shall possess such voting power, in addition to
that provided for in paragraph 13, as shall have
been fixed and determined by the Board of
Directors in respect of the shares of stock of
each such series.
The description and terms of the Preferred Stock A of
each series in the foregoing particulars and the number of
shares constituting each series shall be fixed and
determined by the Board of Directors at the time of the
authorization of the issue of the original shares of each
such series. All shares of each series shall be alike in
every particular.
5. The Preference Stock may be issued from time to
time by resolution or resolutions adopted by the Board of
Directors, either in whole or in part as one or more series,
each series to be appropriately designated by distinguishing
number, letter or title prior to the issue of any shares
thereof.
6. The Preference Stock of all series shall be of the
same class and of equal rank and shall be identical in all
respects except that
(a) the maximum dividend rate of the Preference Stock
of each series shall be such rate as shall have
been fixed and determined by the Board of
Directors to accrue in respect of the shares of
stock of each such series from a date to be
determined as hereinafter provided;
(b) the terms and conditions on which the shares of
each series may be redeemed and the amount or
amounts per share which the Preference Stock of
each series shall be entitled to receive in case
of the redemption thereof shall be such as shall
have been fixed and determined by the Board of
Directors for each such series;
(c) the amount per share which the Preference Stock of
each series shall be entitled to receive in the
event of any liquidation, dissolution or winding
up of this Corporation, whether voluntary or
involuntary, shall be such amount as shall have
been fixed and determined by the Board of
Directors for such purpose for each such series;
(d) a sinking fund or other retirement obligation may
be provided for any or all series of the
Preference Stock, at such rate and on such terms
as shall have been fixed and determined by the
Board of Directors in respect of the shares of
stock of each such series; and
(e) the shares of any or all series of the Preference
Stock may be made convertible into, or
exchangeable for, shares of the Common Stock, at
such price or prices, or at such rates of exchange
and with such adjustments as shall have been fixed
and determined by the Board of Directors in
respect of the shares of stock of each such
series.
The description and terms of the Preference Stock of
each series in the foregoing particulars and the number of
shares constituting each series shall be fixed and
determined by the Board of Directors at the time of the
authorization of the issue of the original shares of each
such series. All shares of each series shall be alike in
every particular.
7. In preference to the Preference Stock and the
Common Stock, out of the surplus or net profits of this
Corporation, as and when declared by the Board of Directors,
the holders of the 4.50% Series Preferred Stock shall be
entitled to receive dividends at but not exceeding the
maximum dividend rate herein fixed and determined, and the
holders of the other series of Preferred Stock and all
series of the Preferred Stock A shall be entitled to receive
dividends, in preference to the Preference Stock and the
Common Stock, out of the surplus or net profits of this
Corporation, as and when declared by the Board of Directors,
at but not exceeding the maximum dividend rates fixed and
determined by the Board of Directors and expressed in the
certificates therefor, payable quarterly on January 1st,
April 1st, July 1st, and October 1st in each year, before
any dividends shall be declared or paid upon or set apart
for the Preference Stock or the Common Stock and before any
sum shall be paid or set apart for the purchase or
redemption of any series of the Preferred Stock, the
Preferred Stock A or the Preference Stock, or the Common
Stock. Such dividends on the Preferred Stock shall be
cumulative from January 1, 1951, as to all shares issued on
or before and outstanding on January 1, 1951; such dividends
on all the Preferred Stock issued after January 1, 1951 and
on the Preferred Stock A shall be cumulative from such date
or dates as the Board of Directors shall fix at the time of
issue thereof, or if no such date or dates shall be fixed,
then from the respective dates of issue thereof, so that if
in any dividend period or periods full cumulative dividends,
at the maximum rates fixed and determined therefor, accrued
on all outstanding shares of Preferred Stock and Preferred
Stock A for all past dividend periods and for the then
current dividend period, shall not have been paid, the
deficiency shall be declared and paid or set apart for
payment before any dividends shall be declared or paid upon
or set apart for the Preference Stock or for the Common
Stock and before any sum shall be paid or set apart for the
purchase or redemption of any series of the Preferred Stock,
the Preferred Stock A or the Preference Stock, or the Common
Stock.
If at any time Preferred Stock or Preferred Stock A of
more than one series shall be outstanding, any dividends
paid upon the Preferred Stock or the Preferred Stock A in an
amount less than full cumulative dividends accrued or in
arrears upon all the Preferred Stock and the Preferred Stock
A outstanding shall be divided among the outstanding series
of the Preferred Stock and the Preferred Stock A in
proportion to the aggregate amounts which would be
distributable to each series of the Preferred Stock and the
Preferred Stock A if full cumulative dividends were at said
time to be declared and paid thereon.
8. Subject to the prior rights and preferences of the
Preferred Stock and the Preferred Stock A hereinbefore set
forth, out of the surplus or net profits of this Corporation
remaining after full cumulative dividends as aforesaid upon
all series of the Preferred Stock and the Preferred Stock A
then outstanding have been paid for all past dividend
periods and after full cumulative dividends upon all series
of the Preferred Stock and the Preferred Stock A for the
current dividend period have been declared and paid or set
apart for payment, then, as and when declared by the Board
of Directors, the holders of the Preference Stock of all
series shall be entitled to receive dividends at but not
exceeding the maximum dividend rates fixed and determined by
the Board of Directors and expressed in the resolution or
resolutions authorizing the creation and issuance of each
such series, payable quarterly on January 1st, April 1st,
July 1st, and October 1st in each year, before any dividends
shall be declared or paid upon or set apart for the Common
Stock and before any sum shall be paid or set apart for the
purchase or redemption of the Preference Stock of any series
or the Common Stock. Such dividends on the Preference Stock
shall be cumulative from such date or dates as the Board of
Directors shall fix at the time of issue thereof, or if no
such date or dates shall be fixed, then from the respective
dates of issue thereof, so that if in any dividend period or
periods full cumulative dividends, at the maximum rates
fixed and determined therefor, accrued on all outstanding
shares of Preference Stock for all past dividend periods and
for the then current dividend period, shall not have been
paid, the deficiency shall be declared and paid or set apart
for payment before any dividends shall be declared or paid
upon or set apart for the Common Stock and before any sum
shall be paid or set apart for the purchase or redemption of
the Preference Stock of any series or the Common Stock.
If at any time the Preference Stock of more than one
series shall be outstanding, any dividends paid upon the
Preference Stock in an amount less than full cumulative
dividends accrued or in arrears upon all the Preference
Stock outstanding shall be divided among the outstanding
series of Preference Stock in proportion to the aggregate
amounts which would be distributable to the Preference Stock
of each series if full cumulative dividends were at said
time to be declared and paid thereon.
9. Subject to the prior rights and preferences of the
Preferred Stock, the Preferred Stock A and the Preference
Stock hereinbefore set forth, out of any surplus or net
profits of this Corporation remaining after full cumulative
dividends as aforesaid upon all series of the Preferred
Stock, the Preferred Stock A and the Preference Stock then
outstanding have been paid for all past dividend periods and
after full cumulative dividends upon all series of the
Preferred Stock, the Preferred Stock A and the Preference
Stock for the current dividend period have been declared and
paid or set apart for payment and after making such
provision, if any, as the Board of Directors may deem
necessary for working capital, then and not otherwise,
dividends may be declared and paid upon the Common Stock, to
the exclusion of the holders of the Preferred Stock, the
Preferred Stock A and the Preference Stock, and no holder of
any series of the Preferred Stock, the Preferred Stock A or
the Preference Stock shall be entitled to receive or shall
receive dividends in excess of the maximum dividend rates
herein set forth or fixed in the certificates therefor or in
the resolution or resolutions authorizing the creation and
issuance of each such series.
The right to receive any dividends which may be
declared payable in stock of any class is vested in the
holders of the Common Stock exclusively, but no such
dividends shall be declared in any dividend period unless
full cumulative dividends upon all series of the Preferred
Stock, the Preferred Stock A and the Preference Stock then
outstanding shall have been paid for all past dividend
periods and shall have been declared and paid or set apart
for payment for the current dividend period.
10. All series of the Preferred Stock and the
Preferred Stock A shall be preferred as to both earnings,
and assets, and in the event of any liquidation, dissolution
or winding up of this Corporation, whether voluntary or
involuntary, before any assets of the Corporation shall be
distributed among or paid over to the holders of the
Preference Stock or the Common Stock, the holders of the
Preferred Stock of each series shall be entitled to be paid
One Hundred Dollars ($100.00) per share, and the holders of
the Preferred Stock A of each series shall be entitled to be
paid that amount which shall have been fixed and determined
for such purpose by the Board of Directors in the resolution
or resolutions authorizing the creation and issuance of each
such series, in each case together with a sum of money
equivalent in the case of each share of stock to all
cumulative dividends on the Preferred Stock or the Preferred
Stock A, as the case may be, accrued and in arrears thereon,
before any distribution of the assets shall be made to the
holders of the Preference Stock or the Common Stock, but the
holders of the Preferred Stock and the Preferred Stock A
shall not be entitled to any further participation in such
distribution, and the holders of the Common Stock, subject
to the prior rights and preferences of the Preference Stock,
shall be entitled, to the exclusion of the holders of the
Preferred Stock, the Preferred Stock A and the Preference
Stock, to share ratably in all the assets of this
Corporation remaining after payment to the holders of the
Preferred Stock, and the Preferred Stock A and the
Preference Stock of their full preferential amounts. If
upon any such liquidation, dissolution or winding up of this
Corporation, the assets distributable among the holders of
the Preferred Stock and the Preferred Stock A shall be
insufficient to permit the payment in full to such holders
of the preferential amounts aforesaid, then the entire
assets of this Corporation to be distributed shall be
distributed among the holders of the Preferred Stock and the
Preferred Stock A then outstanding ratably in proportion to
the full preferential amounts to which they are respectively
entitled.
11. As hereinbefore set forth, the Preference Stock of
all series shall rank junior to all series of the Preferred
Stock and the Preferred Stock A with respect to both
earnings, and assets, and in the event of any liquidation,
dissolution or winding up of this Corporation, whether
voluntary or involuntary, after payment to the holders of
the Preferred Stock and the Preferred Stock A of all amounts
payable to them in such event and before any assets of the
Corporation shall be distributed among or paid over to the
holders of the Common Stock, the holders of the Preference
Stock of each series shall be entitled to be paid that
amount which shall have been fixed and determined for such
purpose by the Board of Directors in the resolution or
resolutions authorizing the creation and issuance of each
such series, in each case together with a sum of money
equivalent in the case of each share of stock to all
cumulative dividends on the Preference Stock, accrued and in
arrears thereon, before any distribution of the assets shall
be made to the holders of the Common Stock, but the holders
of the Preference Stock shall not be entitled to any further
participation in such distribution, and the holders of the
Common Stock shall be entitled, to the exclusion of the
holders of the Preferred Stock, the Preferred Stock A and
the Preference Stock, to share ratably in all the assets of
this Corporation remaining after payment to the holders of
the Preferred Stock, the Preferred Stock A and the
Preference Stock of their full preferential amounts
aforesaid. If upon any such liquidation, dissolution or
winding up of this Corporation, the assets distributable
among the holders of the Preference Stock shall be
insufficient to permit the payment in full to such holders
of the preferential amounts aforesaid, then the entire
assets of this Corporation to be distributed, after payment
to the holders of the Preferred Stock and the Preferred
Stock A of all amounts payable to them in such event, shall
be distributed among the holders of the Preference Stock
then outstanding ratably in proportion to the full
preferential amounts to which they are entitled.
Nothing in paragraph 10 or this paragraph 11 shall be
deemed to prevent the purchase or redemption of any series
of the Preferred Stock, the Preferred Stock A or the
Preference Stock, in any manner permitted by paragraph 12.
A consolidation or merger of this Corporation with any other
corporation or corporations shall not be regarded as a
liquidation, dissolution or winding up of this Corporation
within the meaning of paragraph 10 or this paragraph 11, but
no such consolidation or merger shall in any manner impair
the rights or preferences of any of the Preferred Stock, the
Preferred Stock A or the Preference Stock.
12. This Corporation may at the option of the Board of
Directors from time to time on any dividend payment date
redeem the whole or any part of any series of the Preferred
Stock, the Preferred Stock A or the Preference Stock; with
respect to the Preferred Stock, by paying One Hundred
Dollars ($100.00) per share for each share thereof so
redeemed, plus a premium of such additional amount per share
as herein fixed and determined for the 4.50% Series
Preferred Stock, and in the case of any other series of the
Preferred Stock, such premium, if any, as shall have been
fixed and determined by the Board of Directors, together in
each case with the amount of any dividends accrued and in
arrears thereon; with respect to the Preferred Stock A and
the Preference Stock, by paying the appropriate amount per
share which shall have been fixed and determined by the
Board of Directors in the resolution or resolutions
authorizing the creation and issuance of each such series of
the Preferred Stock A or the Preference Stock, together in
each case with the amount of any dividends accrued and in
arrears thereon. Notice of such election to redeem shall,
not less than thirty days prior to the dividend date upon
which the stock is to be redeemed, be mailed to each holder
of stock so to be redeemed at his address as it appears on
the books of the Corporation. In case less than all of the
outstanding Preferred Stock, the Preferred Stock A or the
Preference Stock of any series is to be redeemed, the amount
to be redeemed may be determined by the Board of Directors;
the method of effecting such redemption, whether by lot or
pro rata or otherwise, is to be determined by the Board of
Directors at the time of issuance. If, on or before the
redemption date named in such notice, the funds necessary
for such redemption shall have been set aside by the
Corporation so as to be available for payment on demand to
the holders of the stock so called for redemption, then,
notwithstanding that any certificate of stock so called for
redemption shall not have been surrendered for cancellation,
the dividends thereon shall cease to accrue from and after
the date of redemption so designated, and all rights with
respect to such stock so called for redemption, including
any right to vote or otherwise participate in the
determination of any proposed corporate action, shall
forthwith after such redemption date cease and determine,
except only the right of the holder to receive the
redemption price therefor but without interest.
13. Except as otherwise required by the laws of
Delaware and except as may be otherwise provided herein and
by the Board of Directors in accordance with paragraphs 2(e)
and 4(f), the holders of the Common Stock shall exclusively
possess all voting power for the election of directors and
for all other purposes, and the holders of the Preferred
Stock, the Preferred Stock A and the Preference Stock shall
have no voting power, and no owner or holder thereof shall
vote thereon or be entitled to receive notice of any meeting
of the stockholders; provided that if at any time and
whenever cumulative dividends on the Preferred Stock or on
the Preferred Stock A shall be in default and unpaid, in
whole or in part, for a period of one year, the holders of
the Preferred Stock and the Preferred Stock A shall have the
same voting powers as the holders of the Common Stock, to-
wit: one vote for each share of stock; and further provided
that if at any time and whenever cumulative dividends on the
Preference Stock shall be in default and unpaid, in whole or
in part, for a period of one year, the holders of the
Preference Stock shall have the same voting powers as the
holders of the Common Stock, to-wit: one vote for each
share of stock, and the holders of the Preferred Stock and
the Preferred Stock A or the Preference Stock, as the case
may be, shall be entitled to receive notices of meetings of
stockholders, and such voting power shall so continue to
vest in the holders of the Preferred Stock and the Preferred
Stock A or the Preference Stock, as the case may be, until
all arrears in the payment of cumulative dividends on the
Preferred Stock and the Preferred Stock A or on the
Preference Stock, as the case may be, shall have been paid
and the dividends thereon for the current dividend period
shall have been declared and the funds for the payment
thereof set aside, on the condition, however, that as often
as thereafter defaulted dividends shall have been paid in
full and provision made for the current dividend as herein
provided (and such payment shall be made as promptly as
shall be consistent with the best interests of the
Corporation), the holders of the Preferred Stock and the
Preferred Stock A or of the Preference Stock, as the case
may be, shall be divested of such voting power and the
voting power shall revest exclusively in the holders of the
Common Stock, subject always to the same provisions for the
vesting of voting power in the holders of the Preferred
Stock and the Preferred Stock A or of the Preference Stock,
as the case may be, in case of any similar default or
defaults in the payment of cumulative dividends either on
the Preferred Stock or the Preferred Stock A or on the
Preference Stock, as the case may be, for one year and the
revesting of such entire voting power in the holders of the
Common Stock, in the event that such default or defaults
shall be cured as above provided.
14. The vote or consent of the holders of a majority
of the Preference Stock at the time outstanding, voting as a
class, shall be required for any amendment of the
Certificate of Incorporation altering materially any
existing provision of the Preference Stock, for the
creation, or an increase in the authorized amount, of any
class of stock ranking, as to earnings, and assets, prior
to, or on a parity with, the Preference Stock, or for an
increase in the authorized amount of the Preference Stock;
provided, however, that if any amendment of the Certificate
of Incorporation shall affect adversely the rights or
preferences of one or more, but not all, of the series of
the Preference Stock at the time outstanding or shall
unequally adversely affect the rights or preferences of
different series of the Preference Stock at the time
outstanding, the vote or consent of the holders of a
majority of such shares of each such series so adversely or
unequally adversely affected shall be required in lieu of or
(if such vote or consent is required by law) in addition to
the vote or consent of the holders of a majority of the
outstanding shares of the Preference Stock, voting as a
class.
15. No holder of stock of this Corporation of any
class shall have any pre-emptive or preferential rights of
subscription to any shares of any class of stock of this
Corporation, whether now or hereafter authorized, or to any
obligations convertible into stock of the Corporation,
issued or sold, nor any right of subscription to any thereof
other than such, if any, as the Board of Directors in its
discretion may from time to time determine, and at such
price as the Board of Directors may from time to time fix
and determine pursuant to the authority conferred by this
Certificate; and any shares of stock or convertible
obligations which the Board of Directors may determine to
offer for subscription to the holders of stock may, as said
Board shall determine, be offered exclusively to holders of
the Preferred Stock, to holders of the Preferred Stock A, to
holders of the Preference Stock or to holders of the Common
Stock, or partly to the holders of the Preferred Stock,
partly to the holders of the Preferred Stock A, partly to
the holders of the Preference Stock and partly to the
holders of the Common Stock, and in such case in such
proportions as among said classes of stock as the Board of
Directors in its discretion may determine.
Resolutions of the Board of Directors
contained in Certificate of Designation
of 4.70% Series Preferred Stock
filed November 29, 1955
RESOLVED that, pursuant to authority expressly granted
to and vested in the Board of Directors of the Corporation by the
provisions of the Certificate of Incorporation, as amended, the
Board of Directors hereby creates a series of fifty thousand
(50,000) shares of Preferred Stock of the Corporation (the
Preferred Stock of all series as a class being hereinafter called
the "Preferred Stock"), and hereby fixes the designation and the
preferences and relative, participating, optional or other
special rights and the qualifications, limitations or
restrictions of such series (in addition to the designation,
powers, preferences and rights, and the qualifications,
limitations or restrictions of such series set forth in the
Certificate of Incorporation, as amended, which are applicable to
the Preferred Stock of all Series), as follows:
1. The designation of the Series shall be "4.70%
Series Preferred Stock" (Cumulative) (hereinafter called the
"4.70% Series") and the number of shares which shall
constitute said Series shall be 50,000; and such number
shall not be increased.
2. The annual dividend rate of the 4.70% Series shall
be four and seventy hundredths per cent. (4.70%) of the par
value of said shares, and no more, and the date from which
dividends shall accrue in respect of all shares of the 4.70%
Series shall be the date of issue thereof.
3. The price at which the shares of the 4.70% Series
may be redeemed shall be as specified in Paragraph 6 of
Article FOURTH of the Certificate of Incorporation, as
amended, plus a premium as follows: $5 per share to and
including January 1, 1961; $4 per share thereafter to and
including January 1, 1966; $3 per share thereafter to and
including January 1, 1971; and $2 per share thereafter;
together with the amount of any dividends accrued and in
arrears thereon.
4. So long as any of the shares of the 4.70% Series
are outstanding, in addition to any other vote or consent of
stockholders required in the Certificate of Incorporation,
as amended, or by law, the vote or consent of the holders of
at least sixty-six and two-thirds per cent. (66-2/3%) of
the shares of the 4.70% Series at the time outstanding,
given in person or by proxy, either in writing without a
meeting (if permitted by law) or at any meeting called for
the purpose, shall be necessary to effect or validate:
(a) any amendment, alteration or repeal of
any of the provisions of the Certificate of
Incorporation, as amended, or By-Laws of the
Corporation, which affects adversely the voting
powers, rights or preferences of the holders of
the 4.70% Series;
(b) the authorization or creation of, or the
increase in the authorized amount of, any stock of
any class or any security convertible into stock
of any class ranking prior to the Preferred Stock;
(c) the voluntary dissolution, liquidation
or winding up of the affairs of the Corporation,
or the sale, lease or conveyance by the
Corporation of all or substantially all its
property or assets;
(d) the merger or consolidation of the
Corporation with or into any other corporation,
unless the Corporation resulting from such merger
or consolidation will have after such merger or
consolidation no class of stock and no other
securities convertible into stock of any class
either authorized or outstanding which stock shall
rank prior to the Preferred Stock, except the same
number of shares of such stock and the same amount
of such other securities with the same rights and
preferences as such stock and securities of the
Corporation respectively authorized and
outstanding immediately preceding such merger or
consolidation, and each holder of Preferred Stock
immediately preceding such merger or consolidation
shall receive the same number of shares, with the
same rights and preferences, of the resulting
corporation; or
(e) the purchase or redemption (for sinking
fund purposes or otherwise) of less than all of
the Preferred Stock at the time outstanding unless
the full dividend on all shares of Preferred Stock
of all series then outstanding shall have been
paid or declared and a sum sufficient for payment
thereof set apart; provided, however, that the
amendment of the provisions of the Certificate of
Incorporation, as amended, so as to authorize or
create or to increase the authorized amount (a) of
the Common Stock and any other class of stock of
the Corporation hereafter authorized over which
the Preferred Stock has preference or priority in
the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding
up of the Corporation or (b) of stock of any class
ranking on a parity with the Preferred Stock,
shall not be deemed to affect adversely the voting
powers, rights or preferences of the holders of
the 4.70% Series; and provided further, that no
such consent of the holders of the 4.70% Series
shall be required, if at or prior to the time when
such amendment, alteration or repeal is to take
effect or when the authorization, creation or
increase of any such prior stock or convertible
security is to be made, or when such consolidation
or merger, voluntary liquidation, dissolution or
winding up, sale, lease, conveyance, purchase or
redemption is to take effect, as the case may be,
either (I) the consent of the holders of at least
sixty-six and two-thirds per cent. (66-2/3%) of
the shares of the Preferred Stock at the time
outstanding shall have been so given to any such
action except an amendment, alteration or repeal
affecting the shares of the 4.70% Series
differently from other series of Preferred Stock,
or (II) provision is to be made for the redemption
of all shares of the 4.70% Series at the time
outstanding.
5. So long as any shares of the 4.70% Series are
outstanding, in addition to any other vote or consent of
stockholders required in the Certificate of Incorporation,
as amended, or by law, the vote or consent of the holders of
a majority of the shares of the 4.70% Series at the time
outstanding, given in person or by proxy, either in writing
without a meeting (if permitted by law) or at any meeting
called for the purpose, shall be necessary to effect or
validate any increase in the authorized amount of the
Preferred Stock, or the authorization or creation of, or the
increase in the authorized amount of, any stock of any class
or any security convertible into stock of any class ranking
on a parity with the Preferred Stock including any such
action taken in connection with the merger or consolidation
of the Corporation with or into any other corporation by
either party thereto; provided, however, that no such
consent of the holders of the 4.70% Series shall be required
if, at or prior to the time the authorization or increase of
any such parity stock or convertible security or any such
additional shares of Preferred Stock is to be made, as the
case may be, either (I) the consent of the holders of a
majority of the shares of the Preferred Stock at the time
outstanding shall have been so given to any such action, or
(II) provision is to be made for the redemption of all
shares of the 4.70% Series at the time outstanding.
6. No sinking fund or other retirement obligation
shall be provided for the shares of the 4.70% Series.
Resolutions of the Board of Directors
contained in Certificate of Designation
of 5.10% Series Preferred Stock
filed April 28, 1961
RESOLVED that, pursuant to authority expressly granted
to and vested in the Board of Directors of the Corporation by the
provisions of the Certificate of Incorporation, as amended, the
Board of Directors hereby creates a series of fifty thousand
(50,000) shares of Preferred Stock of the Corporation (the
Preferred Stock of all series as a class being hereinafter called
the "Preferred Stock"), and hereby fixes the designation and the
preferences and relative, participating, optional or other
special rights and the qualifications, limitations or
restrictions of such series (in addition to the designation,
powers, preferences and rights, and the qualifications,
limitations or restrictions of such series set forth in the
Certificate of Incorporation, as amended, which are applicable to
the Preferred Stock of all Series), as follows:
1. The designation of the Series shall be "5.10%
Series Preferred Stock" (Cumulative) (hereinafter called the
"5.10% Series") and the number of shares which shall
constitute said Series shall be 50,000; such number shall
not be increased and shall be decreased by the number of
shares of said Series at any time retired by the Company.
2. The annual dividend rate of the 5.10% Series shall
be five and ten hundredths per cent (5.10%) of the par value
of said shares, and no more, and the date from which
dividends shall accrue in respect of all shares of the 5.10%
Series shall be the date of issue thereof.
3. The price at which the shares of the 5.10% Series
may be redeemed shall be as specified in paragraph 6 of
Article FOURTH of the Certificate of Incorporation, as
amended, plus a premium as follows: $7.50 per share to and
including January 1, 1966; $7.00 per share thereafter to and
including January 1, 1967; $6.50 per share thereafter to and
including January 1, 1968; $6.00 per share thereafter to and
including January 1, 1969; $5.50 per share thereafter to and
including January 1, 1970; $5.00 per share thereafter to and
including January 1, 1971; $4.50 per share thereafter to and
including January 1, 1972; $4.00 per share thereafter to and
including January 1, 1973; $3.50 per share thereafter to and
including January 1, 1974; $3.00 per share thereafter to and
including January 1, 1975; $2.50 per share thereafter to and
including January 1, 1977; $2.00 per share thereafter;
together with the amount of any dividends accrued and in
arrears thereon.
4. So long as any of the shares of the 5.10% Series
are outstanding, in addition to any other vote or consent of
stockholders required in the Certificate of Incorporation,
as amended, or by law, the vote or consent of the holders of
at least sixty-six and two-thirds per cent. (66 2/3%) of the
shares of the 5.10% Series at the time outstanding, given in
person or by proxy, either in writing without a meeting (if
permitted by law) or at any meeting called for the purpose,
shall be necessary to effect or validate:
(a) any amendment, alteration or repeal of
any of the provisions of the Certificate of
Incorporation, as amended, or By-Laws of the
Corporation, which affects adversely the voting
powers, rights or preferences of the holders of
the 5.10% Series;
(b) the authorization or creation of, or the
increase in the authorized amount of, any stock of
any class or any security convertible into stock
of any class ranking prior to the Preferred Stock;
(c) the voluntary dissolution, liquidation
or winding up of the affairs of the Corporation,
or the sale, lease or conveyance by the
Corporation of all or substantially all its
property or assets;
(d) the merger or consolidation of the
Corporation with or into any other corporation,
unless the corporation resulting from such merger
or consolidation will have after such merger or
consolidation no class of stock and no other
securities convertible into stock of any class
either authorized or outstanding which stock shall
rank prior to the Preferred Stock, except the same
number of shares of such stock and the same amount
of such other securities with the same rights and
preferences as such stock and securities of the
Corporation respectively authorized and
outstanding immediately preceding such merger or
consolidation, and each holder of Preferred Stock
immediately preceding such merger or consolidation
shall receive the same number of shares, with the
same rights and preferences, of the resulting
corporation; or
(e) the purchase or redemption (for sinking
fund purposes or otherwise) of less than all of
the Preferred Stock at the time outstanding unless
the full dividend on all shares of Preferred Stock
of all series then outstanding shall have been
paid or declared and a sum sufficient for payment
thereof set apart;
provided, however, that the amendment of the provisions of
the Certificate of Incorporation, as amended, so as to
authorize or create or to increase the authorized amount (a)
of the Common Stock and any other class of stock of the
Corporation hereafter authorized over which the Preferred
Stock has preference or priority in the payment of dividends
or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation or (b) of any
class ranking on a parity with the Preferred Stock, shall
not be deemed to affect adversely the voting powers, rights
or preferences of the holders of the 5.10% Series; and
provided further, that no such consent of the holders of the
5.10% Series shall be required, if at or prior to the time
when such amendment, alteration or repeal is to take effect
or when the authorization, creation or increase of any such
prior stock or convertible security is to be made, or when
such consolidation or merger, voluntary liquidation,
dissolution or winding up, sale, lease, conveyance, purchase
or redemption is to take effect, as the case may be, either
(i) the consent of the holders of at least sixty-six and two-
thirds per cent. (66 2/3%) of the shares of the Preferred
Stock at the time outstanding shall have been so given to
any such action except an amendment, alteration or repeal
affecting the shares of the 5.10% Series differently from
other series of Preferred Stock, or (ii) provision is to be
made for the redemption of all shares of the 5.10% Series at
the time outstanding.
5. So long as any shares of the 5.10% Series are
outstanding, in addition to any other vote or consent of
stockholders required in the Certificate of Incorporation,
as amended, or by law, the vote or consent of the holders of
a majority of the shares of the 5.10% Series at the time
outstanding, given in person or by proxy, either in writing
without a meeting (if permitted by law) or at any meeting
called for the purpose, shall be necessary to effect or
validate any increase in the authorized amount of the
Preferred Stock, or the authorization or creation of, or the
increase in the authorized amount of, any stock of any class
or any security convertible into stock of any class ranking
on a parity with the preferred Stock including any such
action taken in connection with the merger or consolidation
of the Corporation with or into any other corporation by
either party thereto; provided, however, that no such
consent of the holders of the 5.10% Series shall be required
if, at or prior to the time the authorization or increase of
any such parity stock or convertible security or any such
additional shares of Preferred Stock so to be made, as the
case may be, either (i) the consent of the holders of a
majority of the shares of the Preferred Stock at the time
outstanding shall have been so given to any such action, or
(ii) provision is to be made for the redemption of all
shares of the 5.10% Series at the time outstanding.
6. As a sinking fund for the retirement of the shares
of the 5.10% Series, the Company agrees to purchase (out of
any funds of the Company legally available therefor after
full dividends on the Preferred Stock of all Series then
outstanding for all past dividend periods and for the
current period have been paid or declared and a sum
sufficient for the payment thereof set apart) 1,000 shares
of the 5.10% Series in each year, commencing January 1,
1962, at the price of $100 per share together with the
amount of any dividends accrued and unpaid thereon; provided
that no shares of the 5.10% Series shall be purchased
pursuant to this paragraph unless tendered by the holders
thereof as hereinafter provided; and provided further that
the purchase obligation of the Company under this paragraph
shall not be cumulative from year to year even though less
than 1,000 shares of said Series may be purchased in any
year if in such year the Company shall have duly called for
tenders and purchased shares duly tendered as hereinafter
provided. Shares of the 5.10% Series purchased pursuant to
this paragraph shall be cancelled and retired. The Company
will, at least 40 and not more than 50 days before each
January 1, mail a letter to all holders of record of shares
of the 5.10% Series, stating that it is calling for tenders
of 1,000 shares of said Series for purchase and retirement
under the sinking fund on the following January 1, at $100
per share and accrued and unpaid dividends; the letter shall
ask each holder of shares of the 5.10% Series to indicate,
by return letter to be received by the Company at a date
fixed at least 20 and not more than 25 days before such
January 1, the number of shares, if any, which such holder
tenders for sale; if more than 1,000 shares are duly
tendered by all holders of record, the Company shall first
purchase from each holder tendering shares the number of
shares tendered up to a number of shares (rounding to the
nearest 10 shares) equal as nearly as practicable to 2% of
the sum of (i) the number of shares of the 5.10% Series then
of record in the name of such holder, and (ii) the number of
shares of said Series previously retired that were of record
in the name of such holder at the time of their redemption
or purchase for retirement, and thereafter purchases shall
be made pro rata (as nearly as practicable and rounding to
the nearest 10 shares) on the basis of the shares of said
Series duly tendered for sale or, in the case of holders
duly tendering 1,000 shares, held of record; within three
days after the date on which tenders are to be received, the
Company shall by letter notify all holders of record of
shares of the 5.10% Series of the number of shares tendered
and the number of shares held by each holder to be retired;
and the Company shall make payment for shares purchased
pursuant to this paragraph upon surrender of stock
certificates to the Transfer Agent on or after the January 1
retirement date.
Resolutions of the Board of Directors
contained in Certificate of Designation
of Series B Preference Stock
filed November 12, 1998
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation (hereinafter
called the "Board of Directors" or the "Board") in accordance
with the provisions of the Certificate of Incorporation, the
Board of Directors hereby creates a series of Preference Stock,
without par value, of the Corporation (the "Preference Stock"),
and hereby states the designation and number of shares, and fixes
the relative rights, preferences, and limitations thereof as
follows:
Series B Preference Stock:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series B Preference Stock" (the
"Series B Preference Stock") and the number of shares
constituting the Series B Preference Stock shall be 60,000. Such
number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series B Preference Stock to a number
less than the number of shares then outstanding plus the number
of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into
Series B Preference Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock or Preferred Stock A (or
any similar stock) ranking prior and superior to the
Series B Preference Stock with respect to dividends, the
holders of shares of Series B Preference Stock, equally with
holders of all other series of Preference Stock and in
preference to the holders of Common Stock, par value $3.33
per share (the "Common Stock"), of the Corporation, and of
any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends
payable in cash on the first day of January, April, July,
and October in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series B
Preference Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1 or (b) subject
to the provision for adjustment hereinafter set forth, 1,000
times the aggregate per share amount of all cash dividends,
and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or
fraction of a share of Series B Preference Stock. In the
event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount
to which holders of shares of Series B Preference Stock were
entitled immediately prior to such event under clause (b) of
the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or
distribution on the Series B Preference Stock as provided in
paragraph (A) of this Section immediately after it declares
a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that,
in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series B Preference Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series B Preference Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the
determination of holders of shares of Series B Preference
Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series B Preference Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series B Preference Stock entitled to receive payment of
a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights. The holders of shares of
Series B Preference Stock shall have no voting rights except as
otherwise provided by law or as set forth in the Corporation's
Certificate of Incorporation.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preference Stock as
provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series B Preference Stock
outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolu-
tion, or winding up) to the Series B Preference Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution, or winding up) with
the Series B Preference Stock, except dividends paid ratably on
the Series B Preference Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution, or winding up) to the Series B Preference
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series B Preference Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preference Stock,
or any shares of stock ranking on a parity with the
Series B Preference Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. Reacquired Shares. Any shares of Series B
Preference Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preference Stock and may be reissued as part
of a new series of Preference Stock subject to the conditions and
restrictions on issuance set forth herein, in the Certificate of
Incorporation, or in any other Certificate of Designations
creating a series of Preference Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution, or Winding Up. Upon
any liquidation, dissolution, or winding up of the Corporation,
no distribution shall be made (1) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution, or winding up) to the Series B Preference Stock
unless, prior thereto, the holders of shares of Series B
Preference Stock shall have received $1,000 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series B Preference Stock
shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (2) to the holders
of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution, or winding up) with the Series B
Preference Stock, except distributions made ratably on the
Series B Preference Stock and all such parity stock in proportion
to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution, or winding up. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series B Preference Stock were entitled immediately
prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination, or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
each share of Series B Preference Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of
shares of Series B Preference Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
Section 8. No Redemption. The shares of Series B
Preference Stock shall not be redeemable.
Section 9. Rank. The Series B Preference Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all series of any class of the Corporation's
Preferred Stock and Preferred Stock A, shall rank equally with
all other series of the Corporation's Preference Stock, and shall
rank superior to the Common Stock and any other class or series
of junior stock.
Section 10. Amendment. The Certificate of Incorporation of
the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences, or special
rights of the Series B Preference Stock so as to affect them
adversely without the affirmative vote of the holders of at least
a majority of the outstanding shares of Series B Preference
Stock, voting together as a single class.
FIFTH. The number of shares with which this
Corporation will commence business is ten (10).
SIXTH. The names and places of residence of the
subscribers to the capital stock and the number of shares
subscribed for by each are as follows:
Name Residence No. of Shares
T. L. Croteau Wilmington, Delaware 8
M. A. Bruce Wilmington, Delaware 1
A. M. Hoven Wilmington, Delaware 1
SEVENTH. The Corporation is to have perpetual
existence.
EIGHTH. The private property of the stockholders of
the Corporation shall not be subject to the payment of corporate
debts to any extent whatever.
NINTH. In furtherance, and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
authorized:
Except as otherwise set forth therein, to make, alter
or repeal the By-Laws of the Corporation.
To authorize and cause to be executed mortgages and
liens upon the real and personal property of the
Corporation.
To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper
purpose or to abolish any such reserve in the manner in
which it was created.
By resolution or resolutions, passed by a majority of
the whole Board to designate one or more committees, each
committee to consist of two or more of the directors of the
Corporation, which, to the extent provided in said
resolution or resolutions or in the By-Laws of the
Corporation, shall have and may exercise the powers of the
Board of Directors in the management of the business and
affairs of the Corporation, and may have power to authorize
the seal of the Corporation to be affixed to all papers
which may require it. Such committee or committees shall
have such name or names as may be stated in the By-Laws of
the Corporation or as may be determined from time to time by
resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and outstanding
having voting power given at a stockholders' meeting duly
called for that purpose, or when authorized by the written
consent of the holders of a majority of the voting stock
issued and outstanding, to sell, lease or exchange all of
the property and assets of the Corporation, including its
good will and its corporate franchises, upon such terms and
conditions and for such consideration, which may be whole or
in part shares of stock in, and/or other securities of, any
other corporation or corporations, as its Board of Directors
shall deem expedient and for the best interests of the
Corporation.
The Corporation may in its By-Laws confer powers upon
its Board of Directors in addition to the foregoing, and in
addition to the powers and authorities expressly conferred
upon it by statute.
Both stockholders and directors shall have power, if
the By-Laws so provide, to hold their meetings, and to have
one or more offices within or without the State of Delaware,
and to keep the books of the surviving Corporation (subject
to the provisions of the statutes), outside of the State of
Delaware at such places as may be from time to time
designated by the Board of Directors.
TENTH. This Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ELEVENTH. Whenever a compromise or arrangement is
proposed between this Corporation and its creditors or any class
of them and/or between this Corporation and its stockholders or
any class of them, any court of equitable jurisdiction within the
State of Delaware may, on the application in a summary way of
this Corporation or of any creditor or stockholder thereof, or on
the application of any receiver or receivers appointed for this
Corporation under the provisions of Section 3883 of the Revised
Code of 1915 of said State, or on the application of trustees in
dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 43 of the General
Corporation Law of the State of Delaware, order a meeting of the
creditors or class of creditors, and/or of stockholders or class
of stockholders of this Corporation, as the case may be, to be
summoned in such manner as the said Court directs. If a majority
in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the
said compromise or arrangement and the said reorganization shall,
if sanctioned by the Court to which the said application has been
made, be binding on all the creditors or class of creditors,
and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
TWELFTH. Part I. For the purposes of this Article
TWELFTH, the following terms shall have the meaning hereinafter
set forth:
(a) "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in the General
Rules and Regulations under the Securities Exchange Act of
1934 as in effect on January 1, 1985.
(b) A person shall be a "Beneficial Owner" of any
Voting Stock:
(i) which such person or any of its
Affiliates or Associates (as herein defined)
beneficially owns, directly or indirectly; or
(ii) which such person or any of its
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (B) the right to vote
pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly
or indirectly, by any other person with which such
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 Voting Stock.
(c) "Business Combination" shall mean any of the
following:
(i) any merger or consolidation of the
Corporation or any Subsidiary with (A) any Interested
Stockholder or (B) any other corporation (whether or
not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an
Affiliate of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any
Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation
or any Subsidiary having an aggregate Fair Market Value
of $5,000,000 or more but shall not include
transactions between the Corporation and its
Subsidiaries; or
(iii) the issuance or transfer by the
Corporation or any subsidiary (in one transaction or a
series of transactions) of any securities of the
Corporation or any subsidiary to any Interested
Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate
Fair Market Value of $5,000,000 or more; or,
(iv) the adoption of any plan or proposal
for the liquidation or dissolution of the Corporation
proposed by or on behalf of an Interested Stockholder
or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities
(including any reverse stock split), or
recapitalization of the Corporation, statutory share
exchange, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) 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 Interested Stockholder or any
Affiliate of any Interested Stockholder.
(d) "Continuing Director" shall mean any member of the
Board of Directors of the Corporation (the "Board") who is
unaffiliated with, and not a nominee of, the Interested
Stockholder (as such term is used in the context of a
Business Combination) and was a member of the Board prior to
the time that the Interested Stockholder became an
Interested Stockholder and any successor of a Continuing
Director who is unaffiliated with, and not a nominee of, the
Interested Stockholder and is designated to succeed a
Continuing Director by two-thirds of Continuing Directors
then on the Board.
(e) "Fair Market Value" means:
(i) in the case of stock, the highest
closing sale price during the thirty-day period
immediately preceding the date in question of a share
of such stock on the Composite Tape for the New York
Stock Exchange-Listed Stocks, or, if such stock is not
quoted on the Composite Tape for the New York Stock
Exchange, or, if such 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 stock is listed, or, if such
stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such
stock during the thirty-day period preceding the date
in question on the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ")
or, if NASDAQ is not then in use, any other 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 stock as determined by two-thirds of the
Continuing Directors in good faith; and
(ii) in the case of property other than cash
or stock, the fair market value of such property on the
date in question as determined by a majority of the
Continuing Directors in good faith.
(f) "Institutional Voting Stock" shall mean any class
of Voting Stock which was issued to and continues to be held
solely by one or more insurance companies, pension funds,
commercial banks, savings banks and/or similar financial
institutions or institutional investors.
(g) "Interested Stockholder" shall mean any person
(other than the Corporation or any Subsidiary) who or which:
(i) is the Beneficial Owner, directly or
indirectly, of more than 10 percent of the voting power
of the then outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and
at any time within the two-year period immediately
prior to the date in question, became the Beneficial
Owner, directly or indirectly, of 10 percent or more of
the voting power of the then outstanding Voting Stock;
or
(iii) is an assignee of or has otherwise
succeeded to any shares of Voting Stock which were at
any time within the two-year period immediately prior
to the date in question beneficially owned by any
Interested Stockholder, if 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.
For the purpose of determining whether a person is an
Interested Stockholder pursuant to this paragraph (g), the number
of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned through application of paragraph (b) of this
Part I but shall not include any other shares of Voting Stock
which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(h) In the event of any Business Combination in which
the Corporation survives the phrase "consideration other
than cash to be received" as used in Sections (a) and (b) of
Part II of this Article TWELFTH shall include the shares of
Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such
shares.
(i) A "person" shall mean any individual, firm,
partnership, trust, corporation or other entity.
(j) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly
or indirectly, by the Corporation; provided, however, that
for the purposes of the definition of Interested Stockholder
set forth in paragraph (g) of this Part I, the term
"Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly
or indirectly, by the Corporation.
(k) "Voting Stock" shall mean each share of stock of
the Corporation generally entitled to vote in elections of
directors.
The Continuing Directors of the Corporation shall have the
power and duty to determine, for the purposes of this Article
TWELFTH, on the basis of information known to them after reason
able inquiry, all facts necessary to determine the applicability
of the various provisions of this Article TWELFTH, including (a)
whether a person is an Interested Stockholder, (b) the number of
shares of Voting Stock beneficially owned by any person, (c)
whether a person is an Affiliate or Associate of another, and (d)
whether a class of Voting Stock is Institutional Voting Stock.
Any such determination made in good faith shall be binding and
conclusive on all parties.
PART II.
Except as otherwise expressly provided in Part III of this
Article TWELFTH and in addition to any other provision of law and
as may otherwise be set forth in the Certificate of
Incorporation, the consummation of any Business Combination shall
require that all of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of Common Stock in such
Business Combination shall be at least equal to the highest
of the following:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of Common Stock
acquired by it (A) within the two-year period
immediately prior to the first public announcement of
the proposal of the Business Combination (the
"Announcement Date") or (B) in the transaction in which
it became an Interested Stockholder, whichever is
highest;
(ii) the Fair Market Value per share of
Common Stock on the Announcement Date or on the date on
which the Interested Stockholder became an Interested
Stockholder (such latter date is referred to in this
Article TWELFTH as the "Determination Date"), whichever
is higher; and
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of Common
Stock determined pursuant to paragraph (ii) above,
multiplied by the ratio of (A) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of Common Stock
acquired by it within the two-year period immediately
prior to the Announcement Date to (B) the Fair Market
Value per share of Common Stock on the first day in
such two-year period upon which the Interested
Stockholder acquired any shares of Common Stock.
(b) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of shares of any class of
outstanding Voting Stock other than Common Stock (and other
than Institutional Voting Stock), shall be at least equal to
the highest of the following (it being intended that the
requirements of this paragraph (b) shall be required to be
met with respect to every class of outstanding Voting Stock,
whether or not the Interested Stockholder has previously
acquired any shares of a particular class of Voting Stock):
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of such class of
Voting Stock acquired by it (A) within the two-year
period immediately prior to the Announcement Date or
(B) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential
amount per share to which the holders of shares of such
class of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
(iii) the Fair Market Value per share of such
class of Voting Stock on the Announcement Date or on
the Determination Date, whichever is higher; and
(iv) (if applicable) the price per share
equal to the Fair Market Value per share of such class
of Voting Stock determined pursuant to paragraph
(b)(iii) above, multiplied by the ratio of (A) the
highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares
of such class of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement
Date to (B) the Fair Market Value per share of such
class of Voting Stock on the first day in such two-year
period upon which the Interested Stockholder acquired
any shares of such class of Voting Stock.
(c) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as the
Interested Stockholder has previously paid for shares of
such class of Voting Stock. If the Interested Stockholder
has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of such
class of Voting Stock previously acquired by it.
(d) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such
Business Combination:
(i) except as approved by two-thirds of the
Continuing Directors, there shall have been no failure
to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on
the outstanding Preferred Stock;
(ii) there shall have been (A) no reduction
in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision
of the Common Stock), except as approved by two-thirds
of the Continuing Directors, and (B) an increase in
such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number
of outstanding shares of the Common Stock, unless the
failure so to increase such annual rate is approved by
two-thirds of the Continuing Directors; and
(iii) such Interested Stockholder shall have
not become the beneficial owner of any additional
shares of Voting Stock except as part of the
transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(e) After such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder shall
not have received the benefit, directly or indirectly
(except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection
with such Business Combination or otherwise.
(f) A proxy or information statement describing the
proposed Business Combination and containing the information
specified for proxy or information statements under the
Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
stockholders of the Corporation at least thirty days prior
to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
PART III.
Unless the Business Combination shall have been approved by
two-thirds of the Continuing Directors, (a) the provisions of
Part II of this Article TWELFTH shall be applicable to each
particular Business Combination, and (b) any such Business
Combination shall be approved by the affirmative vote of at least
four-fifths of the voting power of all shares of Voting Stock
(considered for purposes of this Article TWELFTH as one class, it
being understood that for purposes of this Article TWELFTH, each
share of Voting Stock shall have the number of votes granted to
it pursuant to Article FOURTH of the Certificate of
Incorporation).
PART IV.
Nothing contained in this Article TWELFTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
THIRTEENTH. (a) The business and affairs of the
Corporation shall be managed by the Board of Directors consisting
of not less than six nor more than fifteen persons. The exact
number of directors within the limitations specified in the
preceding sentence shall be fixed from time to time by the Board
of Directors pursuant to a resolution adopted by two-thirds of
the Continuing Directors. The directors need not be elected by
ballot unless required by the By-Laws of the Corporation.
The Board of Directors shall be divided into three
classes as nearly equal in number as may be. The initial term of
office of each director in the first class shall expire at the
annual meeting of stockholders in 1986; the initial term of
office of each director in the second class shall expire at the
annual meeting of stockholders in 1987; and the initial term of
office of each director in the third class shall expire at the
annual meeting of stockholders in 1988. At each annual election
commencing at the annual meeting of stockholders of 1986, the
successors to the class of directors whose term expires at that
time shall be elected to hold office for a term of three years to
succeed those whose term expires, so that the term of one class
of directors shall expire each year. Each director shall hold
office for the term for which he is elected or appointed and
until his successor shall be elected and qualified or until his
death, or until he shall resign or be removed.
In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as
such shall nevertheless continue as a director of the class of
which he is a member until the expiration of his current term, or
his earlier resignation, removal from office or death, and (ii)
the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of
Directors among the three classes of directors so as to maintain
such classes as nearly equal in number as may be.
(b) Newly created directorships resulting from any
increase in the authorized number of directors or any vacancies
in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause
shall be filled by a two-thirds vote of the Continuing Directors
then in office, or a sole remaining director, although less than
a quorum, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term
of the class to which they have been elected expires. If one or
more directors shall resign from the Board effective as of a
future date, such vacancy or vacancies shall be filled pursuant
to the provisions hereof, and such new directorship(s) shall
become effective when such resignation or resignations shall
become effective, and each director so chosen shall hold office
as herein provided in the filling of other vacancies.
(c) Any director or the entire Board of Directors may
be removed; however, such removal must be for cause and must be
approved as set forth in this Section. Except as may otherwise
be provided by law, cause for removal shall be construed to exist
only if: (i) the director whose removal is proposed has been
convicted, or where a director was granted immunity to testify
where another has been convicted, of a felony by a court of
competent jurisdiction and such conviction is no longer subject
to direct appeal; (ii) such director has been grossly negligent
in the performance of his duties to the Corporation; or (iii)
such director has been adjudicated by a court of competent
jurisdiction to be mentally incompetent, which mental
incompetency directly affects his ability as a director of the
Corporation, and such adjudication is no longer subject to direct
appeal.
Removal for cause, as cause is defined above, must be
approved by at least a majority vote of the shares of the
Corporation then entitled to be voted at an election for that
director, and the action for removal must be brought within three
months of such conviction or adjudication.
Notwithstanding the foregoing, and except as otherwise
provided by law, in the event that Preferred Stock of the
Corporation is issued and holders of any one or more series of
such Preferred Stock are entitled, voting separately as a class,
to elect one or more directors of the Corporation to serve for
such terms as set forth in the Certificate of Incorporation, the
provisions of this Article THIRTEENTH, Section (c), shall also
apply, in respect to the removal of a director or directors so
elected to the vote of the holders of the outstanding shares of
that class and not to the vote of the outstanding shares as a
whole.
(d) Any directors elected pursuant to special voting
rights of one or more series of Preferred Stock, voting as a
class, shall be excluded from, and for no purpose be counted in,
the scope and operation of the foregoing provisions, unless
expressly stated.
FOURTEENTH. The Board of Directors, in evaluating any
proposal by another party to (a) make a tender or exchange offer
for any securities of the Corporation, (b) effect a Business
Combination (as defined in Article TWELFTH), or (c) effect any
other transaction having an effect upon the properties,
operations or control of the Corporation similar to a tender or
exchange offer or Business Combination, as the case may be,
whether by an Interested Stockholder (as defined in Article
TWELFTH or otherwise, may, in connection with the exercise of its
judgment as to what is in the best interests of the Corporation
and its stockholders, give due consideration to the following:
(i) the consideration to be received by the Corporation
or its stockholders in connection with such transaction in
relation not only to the then current market price for the
outstanding capital stock of the Corporation, but also to
the market price for the capital stock of the Corporation
over a period of years, the estimated price that might be
achieved in a negotiated sale of the Corporation as a whole
or in part through orderly liquidation, the premiums over
market price for the securities of other corporations in
similar transactions, current political, economic and other
factors bearing on securities prices and the Corporation's
financial condition, future prospects and future value as an
independent Corporation;
(ii) the character, integrity and business philosophy
of the other party or parties to the transaction and the
management of such party or parties;
(iii)the business and financial conditions and
earnings prospects of the other party or parties to the
transaction, including, but not limited to, debt service and
other existing or likely financial obligations of such party
or parties, the intention of the other party or parties to
the transaction regarding the use of the assets of the
Corporation to finance the acquisition, and the possible
effect of such conditions upon the Corporation and its
Subsidiaries and the other elements of the communities in
which the Corporation and its Subsidiaries operate or are
located;
(iv) the projected social, legal and economic effects
of the proposed action or transaction upon the Corporation
or its Subsidiaries, its employees, suppliers, customers and
others having similar relationships with the Corporation,
and the communities in which the Corporation and its
Subsidiaries do business;
(v) the general desirability of the continuance of the
Corporation as an independent entity; and
(vi) such other factors as the Continuing Directors may
deem relevant.
FIFTEENTH. Notwithstanding anything to the contrary
contained in this Certificate of Incorporation or the By-Laws of
the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorpora-
tion or the By-Laws of the Corporation), the affirmative vote of
the holders of at least four-fifths of the voting power of the
then outstanding Voting Stock shall be required to amend, alter,
change or repeal, or to adopt any provision inconsistent with,
Articles TWELFTH, THIRTEENTH, FOURTEENTH, FIFTEENTH and SIXTEENTH
of this Certificate of Incorporation, provided that such four-
fifths vote shall not be required for any amendment, alteration,
change or repeal recommended to the stockholders by two-thirds of
the Continuing Directors, as defined in Article TWELFTH.
SIXTEENTH. Any action required or permitted to be
taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by
such stockholders. Special meetings of stockholders of the
Corporation may be called only by the Chairman or President and
shall be called by the Chairman, President or the Secretary upon
the written request of two-thirds of the Continuing Directors.
Stockholders of the Corporation shall not be entitled to request
a special meeting of stockholders.
SEVENTEENTH. No director of the Corporation shall be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (a) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the Delaware
General Corporation Law, or (d) for any transaction from which
the director derived an improper personal benefit.
IN WITNESS WHEREOF, MDU Resources Group, Inc. has
caused its corporate seal to be hereunto affixed, and this
Restated Certificate of Incorporation to be signed by Martin A.
White, its President and Chief Executive Officer, and Lester H.
Loble, II, its Secretary, on May 16, 2002.
MDU RESOURCES GROUP, INC.
ATTEST:
/s/ LESTER H. LOBLE, II By: /s/ MARTIN A. WHITE
Lester H. Loble, II Martin A. White
Secretary President and Chief
Executive Officer
STATE OF NORTH DAKOTA )
) ss.
COUNTY OF BURLEIGH )
On May 16, 2002, before me, Bruce J. Gallagher, a Notary
Public for the State of North Dakota, personally appeared
Martin A. White and Lester H. Loble, II, personally known by me
to be the President and Chief Executive Officer and the Secretary,
respectively, of MDU Resources Group, Inc., and they severally
acknowledged that the execution of said Certificate is their act
and deed and the act and deed of said corporation and that the
facts therein stated are true.
Given under my hand and seal of office the day and year
aforesaid.
/s/ BRUCE J. GALLAGHER
Bruce J. Gallagher, Notary Public
Burleigh County, North Dakota
(NOTARY SEAL) My Commission expires: 8-23-07