EXHIBIT (3)(b)
As Amended May 10, 1995
BY-LAWS
OF
NEW ENGLAND POWER COMPANY
ARTICLE I.
CLASSES OF CAPITAL STOCK.
The capital stock of the corporation shall consist of common
stock of the par value of $20 a share, and three classes of
preferred stock, 6% Cumulative Preferred Stock of the par value
of $100 a share, Dividend Series Preferred Stock of the par value
of $100 a share and Preferred Stock - Cumulative of the par value
of $25 a share, each having respective preferences, voting
rights, restrictions and qualifications as follows:
SECTION 1. 6% Cumulative Preferred Stock and Common Stock.
(Whenever in this Section I reference is made to "preferred" or
"preferred stock", it shall be deemed to be a reference to the 6%
Cumulative Preferred Stock unless expressly provided otherwise.)
At every meeting of the stockholders every holder of shares
of stock, whether preferred or common, shall be entitled to one
vote either in person or by proxy for every such share registered
in his name. The holders of the preferred stock shall be
entitled to receive or to have set apart, out of the surplus or
net profits of the corporation, as and when declared by the board
of directors, a dividend at the rate of, but never exceeding, six
per centum per annum, cumulative, on all such preferred stock
outstanding at the time, which dividend shall be payable yearly,
half-yearly or quarterly as the board of directors may, from time
to time, fix and determine, and before any dividend shall be set
apart for or paid on the common stock. Whenever a dividend is
declared or paid on the preferred stock and all prior dividends
on the outstanding shares of such stock shall have been paid or
set apart, the board of directors may, if in its judgment, the
surplus or net profits, after deducting the amount of dividends
to accrue on the said outstanding preferred stock during the
current year, shall be sufficient for such purpose, then or
thereafter declare and pay dividends on the common stock payable
yearly, half-yearly or quarterly, and payable then or thereafter
out of any remaining surplus or net profits of the year then
current or last past and of any previous year in which full
dividends shall have been paid on the preferred stock. In case
of a liquidation or dissolution or winding up (whether voluntary
or involuntary) of the corporation, the holders of the preferred
stock shall receive cash to the amount of the par value of such
preferred stock, together with all accrued and unpaid dividends
thereon (but no more), before any payment is made to the holders
of the common stock, and the holders of the common stock shall be
solely entitled to the entire assets of the corporation or the
proceeds thereof, remaining after the payment in full, at its par
value, of the preferred stock then outstanding, together with all
dividends thereon accrued and unpaid. But dividends shall not
cumulate upon any preferred shares for any period during which
the same were not outstanding preferred shares of the
corporation. If the corporation at any time increases its
capital stock, and the new or additional shares are required by
law to be offered proportionately to its stockholders, the
holders of all classes of preferred stock only shall be entitled
to subscribe for new or additional preferred stock of any class
and the holders of common stock only shall be entitled to
subscribe for new or additional common stock and notice of such
increase as required by law need be given and the new shares need
be offered proportionately only to the stockholders who are so
entitled to subscribe.
SECTION 2. Dividend Series Preferred Stock.
A. The shares of Dividend Series Preferred Stock may be
issued, as the board of directors may determine, in one or more
series designated "Cumulative Preferred Stock, % Series" or,
with respect to issues subsequent to July 1, 1975, "Cumulative
Preferred Stock, $100 Par Value, % Series" (inserting in each
case the amount of the annual dividend rate, as determined by the
board of directors for each such series) or, with respect to
issues with an adjustable dividend rate, "Cumulative Preferred
Stock, $100 Par Value, Adjustable Rate Series " (inserting in
each case an appropriate designation, as determined by the board
of directors for each such series). All shares of Dividend
Series Preferred Stock, irrespective of series, shall constitute
one and the same class of stock and shall be of equal rank as to
dividends and assets with each other and with the 6% Cumulative
Preferred Stock and the Preferred Stock - Cumulative. The shares
of Dividend Series Preferred Stock of different series, subject
to any applicable provisions of law, may vary, as the board of
directors may determine, as to the following rights and
preferences:
(1) the dividend rate, or method of calculation thereof,
and the date from which the dividends on shares issued prior to
the record date for the first dividend shall be cumulative and
the date for the first dividend;
(2) the redemption price or prices, or method of
calculation thereof, and any restriction on the exercise by the
corporation of its right to redeem such series;
(3) the amount or amounts payable upon any liquidation or
dissolution or winding up;
(4) the terms and amount of any sinking fund provided for
the purchase or redemption of shares; and
(5) the conversion, participation or other special rights.
B. Before any dividends on, or any distribution of assets
(by purchase of shares or otherwise) to holders of, the Common
Stock or any other stock ranking junior to the Dividend Series
Preferred Stock as to dividends (both hereinafter called "junior
stock") shall be paid or set apart for payment or otherwise
provided, the holders of the Dividend Series Preferred Stock
shall be entitled to receive, but only when and as declared by
the board of directors, out of any funds legally available for
the declaration of dividends, cumulative dividends at the annual
dividend rate per share fixed for the particular series payable
quarterly on the first days of January, April, July and October
in each year commencing on a date specified for the first
dividend date as herein provided to stockholders of record on the
respective dates, not exceeding forty-five (45) days preceding
such dividend payment dates fixed in advance for the purpose by
the board of directors prior to the payment of each particular
dividend. No dividends shall be declared on any series of the
Dividend Series Preferred Stock or of any other class of
preferred stock ranking on a parity therewith, as to dividends,
in respect of any quarter-yearly dividend period, unless there
shall likewise be declared on all shares of all series of the
Dividend Series Preferred Stock and of any other class of such
parity preferred stock at the time outstanding, like
proportionate dividends, ratably, in proportion to the respective
annual dividend rates fixed therefor, in respect of the same
quarter-yearly dividend period, to the extent that such shares
are entitled to receive dividends for such quarter-yearly
dividend period. The dividends on shares of all series of the
Dividend Series Preferred Stock shall be cumulative. In the case
of all shares of each particular series, the dividends on shares
of such series shall be cumulative:
(1) on shares issued prior to the record date for the first
dividend on the shares of such series, from the date for the
particular series fixed therefor;
(2) on shares issued after a record date for a dividend,
but prior to the dividend payment date for such dividend, from
said dividend payment date; and
(3) otherwise from the quarter-yearly dividend payment date
next preceding the date of issue of such shares;
so that dividends accrued on all outstanding shares of Dividend
Series Preferred Stock to the last preceding quarterly dividend
payment date shall have been paid in full or declared and set
apart for payment before there shall be any distribution on, or
purchase of, junior stock. The holders of the Dividend Series
Preferred Stock shall not be entitled to receive any dividends
thereon other than the dividends referred to in this subsection B
and other than distributions provided in subsection D below. As
used in this Section 2, the expression "dividends accrued" shall
mean the sum of amounts with respect to all shares of Dividend
Series Preferred Stock then outstanding, which as to each share
shall be an amount computed at the rate per annum of the par
value thereof fixed for the particular series from the date from
which dividends on such share become cumulative to the date with
reference to which the expression is used, irrespective of
whether such amount shall have been declared as dividends or
there shall have existed any funds legally available for the
payment thereof, less the aggregate of all dividends paid or
declared payable on or before said last mentioned date and set
aside for such payment on such share.
C. The corporation, pursuant to action of its board of
directors or as provided in subsection A(8) of Section 4 of this
Article I, may redeem the whole or any part of any series of the
Dividend Series Preferred Stock at the time outstanding, at any
time or from time to time, by paying in cash as herein provided
the redemption price of the shares of the particular series fixed
therefor, together with dividends accrued to the date fixed for
such redemption, and by mailing, postage prepaid, at least thirty
(30) days and not more than ninety (90) days prior to the date
fixed for said redemption a notice specifying said redemption
date to the holders of record of the Dividend Series Preferred
Stock to be redeemed, at their respective addresses as the same
shall appear on the books of the corporation; provided, however,
that the exercise by the corporation of its right to redeem
shares of any particular series may be subject to such
restrictions as are determined for said series. In case of the
redemption of a part only of any series of the Dividend Series
Preferred Stock at the time outstanding, the corporation shall
select by lot in such manner as the board of directors
determines, the shares so to be redeemed. If such notice of
redemption shall have been so mailed, and if on or before the
redemption date specified in such notice all funds necessary for
such redemption shall have been set aside by the corporation, so
as to be and continue to be available therefor, then, on and
after laid redemption date, notwithstanding that any certificate
for the shares of the Dividend Series Preferred Stock so called
for redemption shall not have been surrendered for cancellation,
the shares represented thereby shall no longer be deemed
outstanding, the right to receive dividends thereon shall cease
to accrue, and all rights of the holders thereof shall forthwith
cease and terminate, except only the right of the holders thereof
to receive the amount payable upon redemption thereof, but
without interest; provided, however, that if, after mailing said
notice as aforesaid and prior to the date of redemption specified
in such notice, said funds shall be set aside by deposit in
trust, for the account of the holders of the Dividend Series
Preferred Stock to be redeemed, with a bank or trust company in
good standing, organized under the laws of the United States of
America or of The Commonwealth of Massachusetts, having a
capital, undivided profits and surplus aggregating at least
$5,000,000, thereupon all shares of the Dividend Series Preferred
Stock with respect to which such deposit shall have been made
shall no longer be deemed to be outstanding, and all rights with
respect to such shares of Dividend Series Preferred Stock shall
forthwith upon such deposit in trust cease and terminate, except
only the right of the holders thereof to receive from such
deposit the amount payable upon the redemption but without
interest. In case the holders of the Dividend Series Preferred
Stock which shall have been redeemed shall not within four years
of the date of redemption thereof claim any amount so deposited
in trust for the redemption of such shares, such bank or trust
company shall, upon demand, pay over to the corporation any such
unclaimed amount so deposited with it and shall thereupon be
relieved of all responsibility in respect thereof, and the
corporation shall not be required to hold the amount so paid over
to it separate and apart from its other funds, and thereafter the
holders of such shares of Dividend Series Preferred Stock shall
look only to the corporation for payment of the redemption price
thereof, but without interest. If there are any dividends
accrued to the last preceding quarterly dividend payment date or
dates on the outstanding Dividend Series Preferred Stock or any
other class of preferred stock ranking on a parity therewith as
to assets (both of which are hereinafter in this sentence
collectively referred to as "Preferred Stock"), (i) no Preferred
Stock which is redeemable shall be redeemed, unless all such
Preferred Stock shall be redeemed and unless an offer is made (a)
to purchase all Preferred Stock of any series which is not
redeemable at the time under limited restrictions then applicable
thereto at a price equal to the then redemption price for such
series if such restrictions were not applicable and (b) to
purchase all Preferred Stock which is not redeemable at the time
at a price equivalent to the highest then redemption price on any
outstanding shares of Preferred Stock, after giving effect to the
differences in par value among classes of Preferred Stock, and
(ii) no Preferred Stock shall be purchased, unless an offer is
made to purchase all Preferred Stock for which redemption prices
applicable at the time have been established (whether or not
there is then any applicable restriction on the redemption
thereof) at the same percentage (not in excess of one hundred per
centum (100%)) of the then applicable redemption price of each
series of said stock and unless an offer is made to purchase all
Preferred Stock for which redemption prices applicable at the
time have not been established at the same percentage of a price
equal to the then highest redemption price for any of said stock
for which a redemption price applicable at the time has been
established. All stock redeemed or purchased under the
provisions of this subsection C shall be retired.
D. In the event of any liquidation, dissolution or winding
up (whether voluntary or involuntary) of the affairs of the
corporation or any distribution of its capital, then before any
distribution shall be made to the holders of stock ranking junior
to the Dividend Series Preferred Stock as to assets, the holders
of each series of the Dividend Series Preferred Stock at the time
outstanding shall be entitled to be paid in cash the amount for
the particular series fixed therefor, together in each case with
dividends accrued thereon to the date fixed for payment of such
distributive amounts, and no more. No payments on account of
such distributive amounts shall be made to the holders of any
series of the Dividend Series Preferred Stock or of any other
class of preferred stock ranking on a parity therewith, as to
assets, unless there shall likewise be paid at the same time to
the holders of each other series of the Dividend Series Preferred
Stock and of such parity preferred stock at the time outstanding
like proportionate distributive amounts, ratably, in proportion
to the full distributive amounts to which they are respectively
entitled. After such payment to the holders of Dividend Series
Preferred Stock, the remaining assets and funds of the cor-
poration shall be divided and distributed among the holders of
junior stock then outstanding according to the respective rights.
Neither the consolidation nor the merger of the corporation with
or into any other corporation shall be deemed to be a
liquidation, dissolution or winding up of the corporation.
E. The holders of Dividend Series Preferred Stock shall
have no right to vote except as provided by law and except as
hereafter specifically provided in Section 4 of this Article I.
F. Except as otherwise expressly provided by law, no
holder of Dividend Series Preferred Stock shall be entitled as
such as a matter of right to subscribe for or purchase any part
of any new or additional issue of stock or warrants carrying
rights to stock, or securities convertible into stock, of any
class whatever, whether now or hereafter authorized, and whether
issued for cash, property, services or otherwise. If it is
expressly required by law that such new or additional issue be
offered proportionately to the stockholders, the holders of all
classes of preferred stock only shall be entitled to subscribe
for new or additional preferred stock of any class and the
holders of common stock only shall be entitled to subscribe for
new or additional common stock; and notice of such increase as
required by law need be given and the new shares need be offered
proportionately only to the stockholders who are so entitled to
subscribe.
G. Subject to the limitations, if any, contained in
Sections 4 and 5 of this Article I, the corporation may from time
to time issue additional capital stock divided into classes with
such preferences as to dividends, voting power and other
incidents as may be determined in accordance with applicable
provisions of law and terms of outstanding capital stock.
Without limiting the generality of the foregoing, any such
additional capital stock may be an additional series of Dividend
Series Preferred Stock or additional shares of the initial or any
other series of Dividend Series Preferred Stock.
H. So long as any shares of the Dividend Series Preferred
Stock of any series are outstanding, the payment of dividends on
stock of the corporation ranking junior to the Dividend Series
Preferred Stock as to dividends or assets (other than (i)
dividends payable in stock ranking junior to the Dividend Series
Preferred Stock as to dividends and assets or (ii) dividends paid
in cash if immediately there shall be paid to the corporation in
cash an amount equal to such dividends for shares of or as a
capital contribution with respect to stock ranking junior to the
Dividend Series Preferred Stock as to dividends or assets) and
the making of any distribution of assets to holders of stock
ranking junior to the Dividend Series Preferred Stock as to
dividends or assets by purchase of shares or otherwise (each of
such actions being herein embraced within the term "payment of
junior stock dividends") shall be subject to the following
limitations:
(1) if and so long as the junior stock equity is
less than twenty per cent(20%) of total capitalization, the
payment of junior stock dividends, including the proposed
payment, during the twelve months ending with and including
the date on which the proposed payment is to be made shall
not exceed fifty per cent (50%) of the net income of the
corporation available for the payment of dividends on the
stock ranking junior to the Dividend Series Preferred Stock
as to dividends and assets for the twelve full calendar
months immediately preceding the calendar month in which
such dividend is declared;
(2) if and so long as the junior stock equity is
less than twenty-five per cent (25%) but is twenty per cent
(20%) or more of total capitalization, the payment of junior
stock dividends, including the proposed payment, during the
twelve months ending with and including the date on which
the proposed payment is to be made shall not exceed
seventy-five per cent (75%) of the net income of the
corporation available for the payment of dividends on the
stock ranking junior to the Dividend Series Preferred Stock
as to dividends and assets for the twelve full calendar
months immediately preceding the calendar month in which
such dividend is declared; and
(3) except to the extent permitted under subsections
(1) and 2 above, the corporation shall not make any payment
of junior stock dividends which would reduce the junior
stock equity to less than twenty-five per cent (25%) of
total capitalization.
For the purposes of this subsection H "net income" shall be
determined in accordance with sound accounting practice, less the
excess, if any, of the largest minimum depreciation requirement
for the period of any mortgage indenture to which the corporation
is a party during such period over the amount charged by the
corporation on its books for depreciation during such period.
The term "junior stock equity" is defined in subsection
E(2)(i) of Section 4 of this Article I.
The term "total capitalization" as used in this subsection H
means the aggregate of (x) the junior stock equity, (y) the par
value of, or stated capital represented by, the outstanding
shares of Dividend Series Preferred Stock and any other stock
ranking prior thereto or on a parity therewith as to dividends or
assets and the premium thereon, and (z) the principal amount of
all outstanding indebtedness, of the corporation represented by
bonds, notes and other evidences of indebtedness maturing by
their terms more than one year from the date of issue thereof.
I. No stockholder, director, officer or agent of the
corporation shall be held individually responsible for any action
taken in good faith though subsequently adjudged to be in
violation of this Section 2.
J. The shares of Dividend Series Preferred Stock from time
to time duly authorized may be issued for such consideration as
may be fixed from time to time either by the board of directors
or otherwise, as provided by law. Any and all shares of Dividend
Series Preferred Stock upon receipt by the corporation of the
consideration so fixed shall be deemed fully paid stock and shall
not be liable to any further call or assessment thereon.
K. Every holder of Dividend Series Preferred Stock of the
corporation by becoming such shall be held to have consented to
all of these provisions and to have agreed to be bound thereby
and to have waived to the full extent permitted by law any right
such holder may have either now or at any time in the future
contrary to these provisions.
SECTION 3. Preferred Stock - Cumulative.
A. The shares of Preferred Stock - Cumulative may be
issued, as the board of directors may determine, in one or more
series designated "Cumulative Preferred Stock, $25 Par Value, %
Series" (inserting in each case the amount of the annual dividend
rate, as determined by the board of directors for each such
series) or, with respect to issues with an adjustable dividend
rate, "Cumulative Preferred Stock, $100 Par Value, Adjustable
Rate Series " (inserting in each case an appropriate designation,
as determined by the board of directors for each such series).
All shares of Preferred Stock - Cumulative, irrespective of
series, shall constitute one and the same class of stock and
shall be of equal rank as to dividends and assets with each other
and with the 6% Cumulative Preferred Stock and the Dividend
Series Preferred Stock. The shares of Preferred Stock -
Cumulative of different series, subject to any applicable
provisions of law, may vary, as the board of directors may
determine, as to the following rights and preferences:
(1) the dividend rate, or method of calculation
thereof, and the date from which the dividends on shares
issued prior to the record date for the first dividend shall
be cumulative and the date for the first dividend;
(2) the redemption price or prices, or method of
calculation thereof, and any restriction on the exercise by
the corporation of its right to redeem such series;
(3) the amount or amounts payable upon any
liquidation or dissolution or winding up;
(4) the terms and amount of any sinking fund
provided for the purchase or redemption of shares; and
(5) the conversion, participation or other special
rights.
B. Before any dividends on, or any distribution of assets
(by purchase of shares or otherwise) to holders of, the Common
Stock or any other stock ranking junior to the Preferred Stock -
Cumulative as to dividends (both hereinafter called "junior
stock") shall be paid or set apart for payment or otherwise
provided, the holders of the Preferred Stock - Cumulative shall
be entitled to receive, but only when and as declared by the
board of directors, out of any funds legally available for the
declaration of dividends, cumulative dividends at the annual
dividend rate per share fixed for the particular series payable
quarterly on the first days of January, April, July and October
in each year commencing on a date specified for the first
dividend date as herein provided to stockholders of record on the
respective dates, not exceeding forty-five (45) days preceding
such dividend payment dates fixed in advance for the purpose by
the board of directors prior to the payment of each particular
dividend. No dividends shall be declared on any series of the
Preferred Stock - Cumulative or of any other class of preferred
stock ranking on a parity therewith, as to dividends, in respect
of any quarter-yearly dividend period, unless there shall
likewise be declared on all shares of all series of the Preferred
Stock - Cumulative and of any other class of such parity
preferred stock at the time outstanding, like proportionate
dividends, ratably, in proportion to the respective annual
dividend rates fixed therefor, in respect of the same
quarter-yearly dividend period, to the extent that such shares
are entitled to receive dividends for such quarter-yearly
dividend period. The dividends on shares of all series of the
Preferred Stock - Cumulative shall be cumulative. In the case of
all shares of each particular series, the dividends on shares of
such series shall be cumulative:
(l) on shares issued prior to the record date for
the first dividend on the shares of such series, from the
date for the particular series fixed therefor,
(2) on shares issued after a record date for a
dividend, but prior to the dividend payment date for such
dividend, from said dividend payment date; and
(3) otherwise from the quarter-yearly dividend
payment date next preceding the date of issue of such
shares;
so that dividends accrued on all outstanding shares of Preferred
Stock - Cumulative to the last preceding quarterly dividend
payment date shall have been paid in full or declared and set
apart for payment before there shall be any distribution on, or
purchase of, junior stock. The holders of the Preferred Stock -
Cumulative shall not be entitled to receive any dividends thereon
other than the dividends referred to in this subsection B and
other than distributions provided in subsection D below. As used
in this Section 3, the expression "dividends accrued" shall mean
the sum of amounts with respect to all shares of Preferred Stock
- - Cumulative then outstanding, which as to each share shall be an
amount computed at the rate per annum of the par value thereof
fixed for the particular series from the date from which
dividends on such share become cumulative to the date with
reference to which the expression is used, irrespective of
whether such amount shall have been declared as dividends or
there shall have existed any funds legally available for the
payment thereof, less the aggregate of all dividends paid or
declared payable on or before said last mentioned date and set
aside for such payment on such share.
C. The corporation, pursuant to action of its board of
directors or as provided in subsection A(8) of Section 4 of this
Article I, may redeem the whole or any part of any series of the
Preferred Stock Cumulative at the time outstanding, at any time
or from time to time, by paying in cash as herein provided the
redemption price of the shares of the particular series fixed
therefor, together with dividends accrued to the date fixed for
such redemption, and by mailing, postage prepaid, at least thirty
(30) days and not more than ninety (90) days prior to the date
fixed for said redemption a notice specifying said redemption
date to the holders of record of the Preferred Stock - Cumulative
to be redeemed, at their respective addresses as the same shall
appear on the books of the corporation; provided, however, that
the exercise by the corporation of its right to redeem shares of
any particular series may be subject to such restrictions as are
determined for said series. In case of the redemption of a part
only of any series of the Preferred Stock - Cumulative at the
time outstanding, the corporation shall select by lot in such
manner as the board of directors determines, the shares so to be
redeemed. If such notice of redemption shall have been so
mailed, and if on or before the redemption date specified in
such notice all funds necessary for such redemption shall have
been set aside by the corporation, so as to be and continue to be
available therefor, then, on and after said redemption date,
notwithstanding that any certificate for the shares of the
Preferred Stock - Cumulative so called for redemption shall not
have been surrendered for cancellation, the shares represented
thereby shall no longer be deemed outstanding, the right to
receive dividends thereon shall cease to accrue, and all rights
of the holders thereof shall forthwith cease and terminate,
except only the right of the holders thereof to receive the
amount payable upon redemption thereof, but without interest;
provided, however, that if, after mailing said notice as
aforesaid and prior to the date of redemption specified in such
notice, said funds shall be set aside by deposit in trust, for
the account of the holders of the Preferred Stock - Cumulative to
be redeemed, with a bank or trust company in good standing,
organized under the laws of the United States of America or of
The Commonwealth of Massachusetts, having a capital, undivided
profits and surplus aggregating at least $5,000,000, thereupon
all shares of the Preferred Stock - Cumulative with respect to
which such deposit shall have been made shall no longer be deemed
to be outstanding, and all rights with respect to such shares of
Preferred Stock - Cumulative shall forthwith upon such deposit in
trust cease and terminate, except only the right of the holders
thereof to receive from such deposit the amount payable upon the
redemption but without interest. In case the holders of the
Preferred Stock - Cumulative which shall have been redeemed shall
not within four years of the date of redemption thereof claim any
amount so deposited in trust for the redemption of such shares,
such bank or trust company shall, upon demand, pay over to the
corporation any such unclaimed amount so deposited with it and
shall thereupon be relieved of all responsibility in respect
thereof, and the corporation shall not be required to hold the
amount so paid over to it separate and apart from its other
funds, and thereafter the holders of such shares of Preferred
Stock - Cumulative shall look only to the corporation for payment
of the redemption price thereof, but without interest. If there
are any dividends accrued to the last preceding quarterly
dividend payment date or dates on the outstanding Preferred Stock
- - Cumulative or any other class of preferred stock ranking on a
parity therewith as to assets (both of which are hereinafter in
this sentence collectively referred to as "Preferred Stock"), (i)
no Preferred Stock which is redeemable shall be redeemed, unless
all such Preferred Stock shall be redeemed and unless an offer is
made (a) to purchase all Preferred Stock of any series which is
not redeemable at the time under limited restrictions then
applicable thereto at a price equal to the then redemption price
for such series if such restrictions were not applicable and (b)
to purchase all Preferred Stock which is not redeemable at the
time at a price equivalent to the highest then redemption price
on any outstanding shares of Preferred Stock, after giving effect
to the differences in par value among classes of Preferred Stock,
and (ii) no Preferred Stock shall be purchased, unless an offer
is made to purchase all Preferred Stock for which redemption
prices applicable at the time have been established (whether or
not there is then any applicable restriction on the redemption
thereof) at the same percentage (not in excess of one hundred per
centum (100%)) of the then applicable redemption price for each
series of said stock and unless an offer is made to purchase all
Preferred Stock for which redemption prices applicable at the
time have not been established at the same percentage of a price
equal to the then highest redemption price for any of said stock
for which a redemption price applicable at the time has been
established. All stock redeemed or purchased under the
provisions of this subsection C shall be retired.
D. In the event of any liquidation, dissolution or winding
up (whether voluntary or involuntary) of the affairs of the
corporation or any distribution of its capital, then before any
distribution shall be made to the holders of stock ranking junior
to the Preferred Stock - Cumulative as to assets, the holders of
each series of the Preferred Stock - Cumulative at the time
outstanding shall be entitled to be paid in cash the amount for
the particular series fixed therefor, together in each case with
- -dividends accrued thereon to the date fixed for payment of such
distributive amounts, and no more. No payments on account of
such distributive amounts shall be made to the holders of any
series of the Preferred Stock Cumulative or of any other class of
preferred stock ranking on a parity therewith, as to assets,
unless there shall likewise be paid at the same time to the
holders of each other series of the Preferred Stock - Cumulative
and of such parity preferred stock at the time outstanding like
proportionate distributive amounts, ratably, in proportion to the
full distributive amounts to which they are respectively
entitled. After such payment to the holders of Preferred Stock -
Cumulative, the remaining assets and funds of the corporation
shall be divided and distributed among the holders of junior
stock then outstanding according to the respective rights.
Neither the consolidation nor the merger of the corporation with
or into any other corporation shall be deemed to be a
liquidation, dissolution or winding up of the corporation.
E. The holders of Preferred Stock - Cumulative shall have
no right to vote except as provided by law and except as
hereafter specifically provided in Section 4 of this Article I.
F. Except as otherwise expressly provided by law, no
holder of Preferred Stock - Cumulative shall be entitled as such
as a matter of right to subscribe for or purchase any part of any
new or additional issue of stock or warrants carrying rights to
stock, or securities convertible into stock, of any class
whatever, whether now or hereafter authorized, and whether issued
for cash, property, services or otherwise. If it is expressly
required by law that such new or additional issue be offered
proportionately to the stockholders, the holders of all classes
of preferred stock only shall be entitled to subscribe for new or
additional preferred stock of any class and the holders of common
stock only shall be entitled to subscribe for new or additional
common stock; and notice of such increase as required by law need
be given and the new shares need be offered proportionately only
to the stockholders who are so entitled to subscribe.
G. Subject to the limitations, if any, contained in
Sections 4 and 5 of this Article I, the corporation may from time
to time issue additional capital stock divided into classes with
such preferences as to dividends, voting power and other
incidents as may be determined in accordance with applicable
provisions of law and terms of outstanding capital stock.
Without limiting the generality of the foregoing, any such
additional capital stock may be an additional series of Preferred
Stock - Cumulative or additional shares of the initial or any
other series of Preferred Stock - Cumulative.
H. So long as any shares of the Preferred Stock -
Cumulative of any series are outstanding, the payment of
dividends on stock of the corporation ranking junior to the
Preferred Stock - Cumulative as to dividends or assets (other
than (i) dividends payable in stock ranking junior to the
Preferred Stock - Cumulative as to dividends and assets or (ii)
dividends paid in cash if immediately thereafter there shall be
paid to the corporation in cash an amount equal to such dividends
for shares of or as a capital contribution with respect to stock
ranking junior to the Preferred Stock - Cumulative as to
dividends or assets) and the making of any distribution of
assets to holders of stock ranking junior to the Preferred Stock
- - Cumulative as to dividends or assets by purchase of shares or
otherwise (each of such actions being herein embraced within the
term "payment of junior stock dividends") shall be subject to the
following limitations:
(1) if and so long as the junior stock equity is
less than twenty per cent (20%) of total capitalization, the
payment of junior stock dividends, including the proposed
payment, during the twelve months ending with and including
the date on which the proposed payment is to be made shall
not exceed fifty per cent (50%) of the net income of the
corporation available for the payment of dividends on the
stock ranking junior to the Preferred Stock - Cumulative as
to dividends and assets for the twelve full calendar months
immediately preceding the calendar month in which such
dividend is declared;
(2) if and so long as the junior stock equity is
less than twenty-five per cent (25%) but is twenty per cent
(20%) or more of total capitalization, the payment of junior
stock dividends, including the proposed payment, during the
twelve months ending with and including the date on which
the proposed payment is to be made shall not exceed
seventy-five per cent (75%) of the net income of the
corporation available for the payment of dividends on the
stock ranking junior to the Preferred Stock - Cumulative as
to dividends and assets for the twelve full calendar months
immediately preceding the calendar month in which such
dividend is declared; and
(3) except to the extent permitted under subsections
(1) and (2) above, the corporation shall not make any
payment of junior stock dividends which would reduce the junior
stock equity to less than twenty-five per cent (25%) of total
capitalization.
For the purposes of this subsection H "net income" shall be
determined in accordance with sound accounting practice, less the
excess, if any, of the largest minimum depreciation requirement
for the period of any mortgage indenture to which the corporation
is a party during such period over the amount charged by the
corporation on its books for depreciation during such period.
The term "junior stock equity" is defined in subsection
E(2)(i) of Section 4 of this Article I.
The term "total capitalization" as used in this subsection H
means the aggregate of (x) the junior stock equity, (y) the par
value of, or stated capital represented by, the outstanding
shares of Preferred Stock - Cumulative and any other stock
ranking prior thereto or on a parity therewith as to dividends or
assets and the premium thereon, and (z) the principal amount of
all outstanding indebtedness of the corporation represented by
bonds, notes and other evidences of indebtedness maturing by
their terms more than one year from the date of issue thereof.
I. No stockholder, director, officer or agent of the
corporation shall be held individually responsible for any action
taken in good faith though subsequently adjudged to be in
violation of this Section 3.
J. The shares of Preferred Stock - Cumulative from time to
time duly authorized may be issued for such consideration as may
be fixed from time to time either by the board of directors or
otherwise, as provided by law. Any and all shares of Preferred
Stock - Cumulative upon receipt by the corporation of the
consideration so fixed shall be deemed fully paid stock and shall
not be liable to any further call or assessment thereon.
K. Every holder of Preferred Stock - Cumulative of the
corporation by becoming such shall be held to have consented to
all of these provisions and to have agreed to be bound thereby
and to have waived to the full extent permitted by law any right
such holder may have either now or at any time in the future
contrary to these provisions.
SECTION 4. Certain Rights of Dividend Series Preferred
Stock and Preferred Stock-Cumulative.
A. (1) If dividends accrued to the last preceding quarterly
dividend payment date or dates on the outstanding Dividend Series
Preferred Stock, Preferred Stock - Cumulative and any other class
of preferred stock ranking on a parity therewith, as to
dividends, shall at any time and from time to time equal or
exceed an amount equivalent to four (4) full quarterly dividends
on any shares of any series of the Dividend Series Preferred
Stock, Preferred Stock - Cumulative and such parity preferred
stock at the time outstanding, then until all dividends in
default on the Dividend Series Preferred Stock, Preferred Stock -
Cumulative and such parity preferred stock shall have been paid,
the holders of Dividend Series Preferred Stock, Preferred Stock -
Cumulative and such parity preferred stock, voting separately as
one class, shall have the right to elect the smallest number of
directors necessary to constitute a majority of the full board of
directors, and the holders of stock generally entitled to vote,
voting separately as one class, shall have the right to elect the
remaining members of the board of directors. If and when all
dividends in default on the Dividend Series Preferred Stock,
Preferred Stock - Cumulative and such parity preferred stock
shall be paid (and, except when prevented from so doing by any
applicable restriction of law or contained in any agreement
relating to indebtedness of the corporation, such dividends shall
be declared and paid out of any funds legally available therefor
as soon as reasonably practicable unless, by a majority vote of
the directors elected by the holders of stock generally entitled
to vote, it is determined that such payment is not in the best
interests of the corporation), the Dividend Series Preferred
Stock, Preferred Stock - Cumulative and such parity preferred
stock shall thereupon be divested of such special right to elect
any member of the board of directors, but subject always to the
same provisions for the vesting of such special right in the
Dividend Series Preferred Stock, Preferred Stock - Cumulative and
such parity preferred stock in case of further like default or
defaults.
(2) Whenever under the provisions of this subsection A the
holders of Dividend Series Preferred Stock, Preferred Stock -
Cumulative and any other class of preferred stock ranking on
parity therewith as to dividends become entitled to elect a
majority of the board of directors, a special meeting of the
holders of Dividend Series Preferred Stock, Preferred Stock -
Cumulative and such parity preferred stock and a special meeting
of the stockholders generally entitled to vote shall be held for
the purpose of electing directors. Notices thereof shall be
given promptly by the corporation and in any case within fifteen
(15) days of the occurrence of such change in voting powers, the
meetings to be held not sooner than forty-five (45) days nor
later than sixty (60) days after the occurrence of such change in
voting powers. However, if the change occurs within ninety (90)
days prior to the date set for the annual meeting of the
stockholders generally entitled to vote, no special meetings need
be called prior thereto and an annual meeting of holders of
Dividend Series Preferred Stock, Preferred Stock - Cumulative and
any other such parity preferred stock shall be called for the
same date as the date of the annual meeting of stockholders
generally entitled to vote; provided, however, that, if the
change occurs within forty-five (45) days prior to the date set
for the annual meeting of the stockholders generally entitled to
vote, special meetings in lieu of annual meetings shall be called
to be held not later than sixty (60) days after such change
occurs. If the corporation fails to call the special or annual
meetings as above provided or fails to hold such annual meetings
within three (3) days of the date provided therefor in the
by-laws, any holder or holders of Dividend Series Preferred
Stock, Preferred Stock - Cumulative, such parity preferred stock
and/or stock generally entitled to vote holding in the aggregate
one thousand (1,000) shares may call special meetings for such
purpose. Notice of each such meeting of stockholders of the
corporation setting forth the purpose or purposes of such meeting
shall be mailed by the corporation not less than thirty (30) days
prior to such meeting to all stockholders at their respective
addresses appearing upon the books of the corporation entitled to
vote thereat, unless such notice shall have been waived either
before or after the holding of such meeting by all such
stockholders.
(3) Upon reversion, pursuant to subsection A(l), of the
voting powers to their status prior to default, a special or
annual meeting of stockholders generally entitled to vote shall
be held for the purpose of electing directors. Notice thereof
shall be given promptly by the corporation and in any case within
fifteen (15) days after such reversion, such notice to be mailed
by the corporation not less than seven (7) nor more than ten (10)
days prior to such meeting to all stockholders generally entitled
to vote at their respective addresses appearing upon the books of
the corporation, unless such notice shall have been waived either
before or after the holding of such meeting by all such
stockholders. If the corporation fails to call such meeting or
fails to hold such annual meeting within three (3) days of the
date provided therefor in the by-laws, any holder or holders of
stock generally entitled to vote holding in the aggregate one
thousand (1,000) shares may call a special meeting for such
purpose.
(4) Any director elected by holders of Dividend Series
Preferred Stock, Preferred Stock - Cumulative and any other class
of preferred stock ranking on a parity therewith, as to
dividends, shall hold office until the next annual meeting of the
holders of Dividend Series Preferred Stock, Preferred Stock -
Cumulative and such parity preferred stock and until his
successor is chosen and qualified, except as otherwise provided
in this subsection A. Once any directors have been elected by
holders of Dividend Series Preferred Stock, Preferred Stock -
Cumulative and such parity preferred stock, and so long as such
holders are entitled to elect such directors, annual meetings of
such holders shall be held for the purpose of electing directors,
such meetings to immediately follow the annual meetings of
stockholders generally entitled to vote. During any period in
which the holders of Dividend Series Preferred Stock, Preferred
Stock - Cumulative and such parity preferred stock have the right
to elect a majority of the board of directors, pursuant to
subsection A(l), the number of directors constituting the full
board of directors shall be the number constituting the full
board of directors immediately prior to said period unless it be
changed by a two-thirds vote at an annual meeting of such holders
and by a two-third vote at an annual meeting in the same year of
the holders of stock generally entitled to vote. In the event
the number of directors is so increased or decreased, the holders
of Dividend Series Preferred Stock, Preferred Stock - Cumulative
and such parity preferred stock shall have the right at such
annual meeting to elect the smallest number of directors
necessary to constitute a majority of the new number of
directors, and the holders of stock generally entitled to vote
shall have the right to elect the remaining directors, provided,
however, that neither group of directors so elected shall be
entitled to hold office until both groups have been duly elected.
(5) At all meetings of stockholders held for the purpose of
electing directors, during such times as the holders of shares of
the Dividend Series Preferred Stock, Preferred Stock - Cumulative
and any other class of preferred stock ranking on a parity
therewith, as to dividends, shall have the right to elect a
majority of the board of directors, pursuant to the foregoing
provisions of this subsection A, the presence in person or by
proxy of the holders of a majority of the outstanding shares of
the stock generally entitled to vote, as one class, shall be
required to constitute a quorum of such class for the election of
directors and the presence in person or by proxy of the holders
of a majority of the outstanding shares of all series of the
Dividend Series Preferred Stock, Preferred Stock - Cumulative and
such parity preferred stock, voting separately as one class,
shall be required to constitute a quorum of such class for the
election of directors. The absence of a quorum of the holders of
either such class shall not prevent or invalidate the election of
directors by the other such class if the necessary quorum of the
holders of stock of such class is present in person or by proxy
at the meeting of such class or any adjournment thereof, except
that in the case of the first election following the accrual of
the special right of the holders of Dividend Series Preferred
Stock, Preferred Stock - Cumulative and any such parity preferred
stock to elect a majority of the board of directors, the
directors elected by the holders of stock generally entitled to
vote shall not take office until the election of such majority.
In the absence of a quorum of the holders of stock of either such
class, the meeting shall be adjourned from time to time, which
may be without notice other than announcement at the meeting,
until such quorum shall be obtained, provided that if such quorum
shall not have been obtained within ninety (90) days from the
date of such meeting as originally called (or, in the case of any
annual meeting held during the continuance of such special right,
from the date fixed for such annual meeting) the presence in
person or by proxy of the holders of one-third, instead of said
majority, of said shares shall then be sufficient to constitute a
quorum for the election of the directors whom such stockholders
are then entitled to elect. In the calculation of any quorum of
the class composed of the holders of the Dividend Series
Preferred Stock, the Preferred Stock - Cumulative and parity
preferred stock, each share of stock bearing $100 par value shall
be counted as one and each share of stock bearing $25 par value
shall be counted as one-quarter.
(6) Forthwith upon the election of a majority of the board
of directors of the corporation by the holders of Dividend Series
Preferred Stock, Preferred Stock - Cumulative and any other class
of preferred stock ranking on a parity therewith, as to
dividends, pursuant to subsection A(l) hereof, the terms of
office of all persons who may be directors of the corporation at
the time shall terminate, whether or not the holders of stock
generally entitled to vote shall then have elected the remaining
members of the board of directors, and, if the holders of stock
generally entitled to vote shall not have elected the remaining
members of the board of directors, then the directors so elected
by the holders of Dividend Series Preferred Stock, Preferred
Stock - Cumulative and such parity preferred stock shall
constitute the board of directors pending such election of the
remaining members by such holders of stock generally entitled to
vote. Upon the reversion, pursuant to subsection A(l), of the
voting powers to their status prior to default, then forthwith
upon the election of new directors by the holders of stock
generally entitled to vote, the terms of office of the directors
elected by the holders of Dividend Series Preferred Stock,
Preferred Stock Cumulative and such parity preferred stock shall
terminate.
(7) In case of any vacancy in the office of a director
elected by the holders of Dividend Series Preferred Stock,
Preferred Stock - Cumulative and any other class of preferred
stock ranking on a parity therewith, as to dividends, pursuant to
the foregoing provisions of this subsection A, the remaining
directors elected by the holders of Dividend Series Preferred
Stock, Preferred Stock - Cumulative and such parity preferred
stock, by affirmative vote of a majority of said directors, or
the remaining director so elected if there be but one, may elect
a successor or successors to hold office for the unexpired term
of the director or directors whose place or places shall be
vacant.
(8) Under all circumstances, however, the directors elected
by the holders of stock generally entitled to vote shall have the
right, and neither the holders of Dividend Series Preferred
Stock, Preferred Stock - Cumulative or any other class of
preferred stock ranking on a parity therewith, as to dividends,
nor any directors elected under these provisions by the holders
of Dividend Series Preferred Stock, Preferred Stock - Cumulative
and any other class of preferred stock ranking on a parity
therewith, as to dividends, shall have any right, to vote upon
the question of calling for redemption, or of purchasing, all of
the Dividend Series Preferred Stock, the Preferred Stock -
Cumulative and such parity preferred stock at the time
outstanding.
(9) Except when some mandatory provision of law shall be
controlling or as otherwise provided in this Section 4 and, with
respect to any special rights of (i) the Dividend Series
Preferred Stock as a class, or (ii) the Preferred Stock -
Cumulative as a class, or (iii) any series of either such class
as a series, in the provisions of the by-laws or articles of
organization controlling said class or in the votes creating said
series, neither the Dividend Series Preferred Stock nor the
Preferred Stock - Cumulative shall be entitled to vote as a
separate class, and no outstanding series of either such class
shall be entitled to vote as a separate series, on any matter and
all shares of the Dividend Series Preferred Stock of all series
and all shares of the Preferred Stock - Cumulative of all series
shall be deemed to constitute but one class for any purpose for
which a vote of the stockholders of the corporation by classes
may now or hereafter be required.
(10) During the period the Dividend Series Preferred Stock
and the Preferred Stock - Cumulative have the special voting
rights provided by this subsection A, the 6% Cumulative Preferred
Stock, which is generally entitled to vote as specified in
Section 1, may vote either as stock generally entitled to vote or
as parity preferred stock or as both.
B. So long as any shares of the Dividend Series Preferred
Stock of any series are outstanding, the corporation shall not,
without the vote at a meeting called for that purpose of the
holders of at least two-thirds of the total number of shares of
the Dividend Series Preferred Stock of all series then
outstanding make any change in the provisions relative to the
Dividend Series Preferred Stock, or of any series thereof, which
would change the express terms and provisions of such stock
(other than the express terms and provisions thereof set forth in
subsections A, D, and E of this Section 4) in any manner
prejudicial to the holders thereof except that if such change is
prejudicial to the holders of one or more, but not all of such
series, only to the vote of the holders of two-thirds of the
total number of shares of all series so affected and then
outstanding shall be required.
C. So long as any shares of the Preferred Stock -
Cumulative of any series are outstanding, the corporation shall
not, without the vote at a meeting called for that purpose of the
holders of at least two-thirds of the total number of shares of
the Preferred Stock - Cumulative of all series then outstanding
make any change in the provisions relative to the Preferred Stock
- - Cumulative, or of any series thereof, which would change the
express terms and provisions of such stock (other than the
express terms and provisions thereof set forth in subsections A,
D, and E of this Section 4) in any manner prejudicial to the
holders thereof except that if such change is prejudicial to the
holders of one or more, but not all, of such series, only the
vote of the holders of two-thirds of the total number of shares
of all series so affected and then outstanding shall be required.
D. So long as any shares of the Dividend Series Preferred
Stock or the Preferred Stock - Cumulative of any series are
outstanding, the corporation shall not, without the vote at a
meeting called for that purpose of at least two-thirds of the
votes entitled to be cast by the holders of the total number of
shares of the Dividend Series Preferred Stock and the Preferred
Stock - Cumulative of all series then outstanding:
(1) make any change in the provisions of this
Section 4, which would change the express terms and
provisions of subsections A, D, or E of this Section 4 in
any manner prejudicial to the holders of the Dividend Series
Preferred Stock and the Preferred Stock - Cumulative except
that if such change is prejudicial to the holders of one
class, but not both, only the vote of the holders of
two-thirds of the total number of shares of the class so
affected and then outstanding shall be required; or
(2) create or authorize any class of stock which
shall be preferred as to dividends or assets over the
Dividend Series Preferred Stock or the Preferred Stock -
Cumulative.
No preferred stock so preferred as to dividends or assets over
the Dividend Series Preferred Stock or the Preferred Stock -
Cumulative shall be issued more than six months after the above
referred to vote creating or authorizing such class of stock
unless within six months prior to such issue approval thereof has
been obtained, at a meeting called for the purpose, by vote of at
least two-thirds of the total number of shares of Dividend Series
Preferred Stock and the Preferred Stock - Cumulative of all
series outstanding.
E. So long as any shares of the Dividend Series Preferred
Stock or the Preferred Stock - Cumulative of any series are
outstanding, the corporation shall not, without the vote at a
meeting called for that purpose of at least a majority of the
votes entitled to be cast by the holders of the total number of
shares of the Dividend Series Preferred Stock and the Preferred
Stock - Cumulative of all series then outstanding:
(1) Issue shares of any series of Dividend Series Preferred
Stock or Preferred Stock - Cumulative if after such issue the
aggregate outstanding par value of all such series would exceed
$250,000,000.
(2) Issue additional shares of any series of Dividend
Series Preferred Stock or Preferred Stock Cumulative or of any
other stock ranking prior thereto or on a parity therewith as to
dividends or assets, except for refunding an equal par value of
Dividend Series Preferred Stock or Preferred Stock - Cumulative,
or other such prior or parity preferred stock, of the corporation
theretofore outstanding:
(i) unless the junior stock equity to be outstanding
immediately after such issue shall be at least equal to the
aggregate of the par or stated value of the Dividend Series
Preferred Stock and the Preferred Stock - Cumulative and of
any other such prior or parity stock to be outstanding
immediately after such issue; provided, however, that if for
the purpose of meeting this requirement it shall have been
necessary to take into consideration any earned surplus of
the corporation, such surplus shall not be available
thereafter for distribution on or purchase of stock ranking
junior to the Dividend Series Preferred Stock or the
Preferred Stock - Cumulative as to dividends or assets while
said additional issue is outstanding (the term "junior stock
equity" as used in this subsection E and in subsections H of
Sections 2 and 3 means the aggregate of the par value of, or
stated capital represented by, the outstanding shares of
stock ranking junior to the Dividend Series Preferred Stock
and the Preferred Stock - Cumulative as to dividends and
assets, of the premium on such junior stock and of the
surplus (including Retained earnings and other paid-in
capital) of the corporation less, unless the amounts or
items are being amortized or are being provided for by
reserves, (a) any amounts recorded on the books of the
corporation for utility plant and other plant in excess of
the original cost thereof, (b) unamortized debt discount and
expense, capital stock discount and expense and any other
intangible items set forth on the asset side of the balance
sheet as a result of accounting convention, (c) the excess,
if any, of the aggregate amount payable on involuntary
liquidation, dissolution or winding up of the affairs of the
corporation upon all outstanding preferred stock of the
corporation over the aggregate par or stated value thereof
and any premiums thereon and (d) the aggregate of the
excess, if any, for each year and the final fraction of a
year, if any, during the period from January 1, 1953 to the
end of a month within ninety (90) days preceding the date as
of which junior stock equity is determined, of the largest
minimum depreciation requirement for each such year and such
final fraction of a year of any mortgage indenture to which
the corporation is a party during such year or such final
fraction of a year over the amount charged by the
corporation on its books for depreciation during such year
or such final fraction of a year);
(ii) unless the gross income of the corporation
available for interest on its indebtedness and for dividends
on the Dividend Series Preferred Stock, the Preferred Stock
- Cumulative and any other such prior or parity stock,
determined in accordance with sound accounting practice, for
a period of twelve (12) consecutive calendar months within
the fifteen (15) calendar months immediately preceding the
calendar month in which such additional stock is issued, or
in which a contract for the issuance and sale thereof is
made, is at least one and one-half (1 1/2) times the
aggregate of the annual interest charges and dividend
requirements on all interest bearing indebtedness and all
series of Dividend Series Preferred Stock, Preferred Stock -
Cumulative and such prior or parity stock to be outstanding
immediately after the proposed issue; and
(iii) unless the net income of the corporation
available for dividends on the Dividend Series Preferred
Stock, the Preferred Stock - Cumulative and any other such
prior or parity stock, determined in accordance with sound
accounting practice, for the same twelve (12) months'
period, is at least two (2) times the aggregate of the
annual dividend requirements on all series of Dividend
Series Preferred Stock, Preferred Stock - Cumulative and
such prior or parity stock to be outstanding immediately
after the proposed issue.
In said computations in subsections (ii) and (iii):
(a) interest on indebtedness and dividends on stock
in each case to be retired with the proceeds of the proposed
issue are to be excluded;
(b) such gross income or net income, respectively,
similarly determined for said twelve (12) month period, from
any property acquired by purchase, merger or otherwise
during or after said period or to be acquired in connection
with the proposed issue, may be included;
(c) the amount deducted for taxes shall be the
amount charged by the corporation on its books for taxes;
and
(d) the amount deducted for depreciation shall be
the higher of the amount charged by the corporation on its
books for depreciation during such period or the largest
minimum depreciation requirement for such period of any
mortgage indenture to which the corporation is a party
during such period.
(3) Merge or consolidate with or into any other corporation
or corporations or sell, lease or dispose of all or substantially
all its assets, unless such merger, consolidation or sale, lease
or disposition, or the issuance and assumption of all securities
to be issued or assumed in connection therewith, shall have been
ordered, approved or permitted by the Securities and Exchange
Commission under the provisions of the Public Utility Holding
Company Act of 1935 or by any successor commission or regulatory
authority of the United States of America having jurisdiction in
the premises under said Act or by any court of the United States
having such jurisdiction.
(4) Issue any unsecured notes, debentures or other
securities representing unsecured indebtedness, or assume any
such unsecured securities, for purposes other than the redemption
or other retirement of outstanding shares of all series of the
Dividend Series Preferred Stock and the Preferred Stock -
Cumulative, if immediately after such issue or assumption the
total principal amount of all unsecured notes, debentures or
other securities representing unsecured indebtedness issued or
assumed by the corporation and then outstanding (including
unsecured securities then to be issued or assumed but excluding
unsecured securities theretofore so voted for by holders of
Dividend Series Preferred Stock and Preferred Stock - Cumulative)
(the "Unsecured Indebtedness") would exceed twenty per cent (20%)
of the aggregate of (i) the total principal amount of all bonds
and other securities representing secured indebtedness issued or
assumed by the corporation and then outstanding and (ii) the
capital, premium and retained earnings of the corporation as then
stated on the books of account of the corporation; provided,
however, that after July 1, 1976, short-term unsecured
indebtedness shall not exceed ten per cent (10%) of such
aggregate of (i) and (ii) above; and provided, further, that
after July 1, 1976, in the event unsecured securities
representing short-term unsecured indebtedness (excluding
unsecured securities theretofore so voted for by the holders of
Dividend Series Preferred Stock and Preferred Stock - Cumulative)
exceed ten per cent (10%) of such aggregate of (i) and (ii)
above, no unsecured securities representing unsecured
indebtedness shall be issued or assumed (except for the purpose
of redemption or other retirement of outstanding shares of all
series of the Dividend Series Preferred Stock and the Preferred
Stock - Cumulative) unless such ratio of short-term unsecured
indebtedness immediately after such issue or assumption is to be
not over ten per cent (10%) of such aggregate of (i) and (ii)
above. "Short-term unsecured indebtedness" as used herein means
unsecured indebtedness of an original maturity of less than ten
years and "long-term unsecured indebtedness" means unsecured
indebtedness of an original maturity of ten years or more. For
the purposes hereof, when any long-term unsecured indebtedness
becomes due within ten years, or when any long-term unsecured
indebtedness is to be retired within ten years through a sinking
fund or otherwise, such long-term unsecured indebtedness, in each
case, shall be considered short-term unsecured indebtedness;
provided, however, that any long-term unsecured indebtedness of a
single maturity (except as provided above in respect of a sinking
fund therefor), or the last maturity of any long-term unsecured
indebtedness of serial maturities, shall not be considered
short-term unsecured indebtedness until due within five years.
"Premium" as used in this subsection D with reference to
capital stock shall mean such premium on capital stock as has
been paid in, or will have been paid in immediately after the
proposed issue of additional capital stock, and is not available
for distribution on, or purchase of, junior stock. If the
corporation has outstanding at any time shares without par value,
then references in subsection D(2) above to par value shall
refer, in the case of such shares without par value, to that part
of the stated capital represented by such shares.
The voting rights set forth in subsections B, C and D shall
not be effective if, in connection with any matter specified
therein, provision is made for the purchase, redemption or
retirement of all the Dividend Series Preferred Stock and the
Preferred Stock - Cumulative at the time outstanding, or it is
provided that the proposed action shall not be effective unless
such provision is made.
In the calculations in subsections D and E of "at least
two-thirds of the total number of shares of the Dividend Series
Preferred Stock and the Preferred Stock - Cumulative" or of "at
least a majority of the total number" of such shares, each share
of Dividend Series Preferred Stock bearing $100 par value shall
be counted as one and each share of Preferred Stock - Cumulative
bearing $25 par value shall be counted as one-quarter.
F. No stockholder, director, officer or agent of the
corporation shall be held individually responsible for any action
taken in good faith though subsequently adjudged to be in
violation of this Section 4.
SECTION 5. Maximum Issues of Preferred Stock. The
corporation shall not, without the vote at a meeting called for
the purpose of at least a majority of the shares of stock
generally entitled to vote, issue shares of any series of
Dividend Series Preferred Stock or Preferred Stock - Cumulative
if after such issue the aggregate outstanding par value of all
such series would exceed $250 million.
ARTICLE II.
STOCK CERTIFICATES AND TRANSFERS.
SECTION 1. Certificates. Each stockholder shall be
entitled to a certificate of the capital stock of the corporation
owned by him in such form as shall, in conformity to law, be
prescribed from time to time by the board of directors. Such
certificate shall be signed by the president or a vice-president
and by the treasurer or an assistant treasurer, and shall bear
the seal of the corporation; provided, however, that when any
such certificate is signed by a transfer agent and by a registrar
and the registrar is not the same person, partnership,
association, trust or corporation as the transfer agent, the
signature of the president or a vice-president or of the
treasurer or an assistant treasurer of the corporation, or both
such signatures, or the seal of the corporation, or either or
both of such signatures and such seal, upon such certificate may
be facsimile, and such certificate shall be as valid and
effectual for all purposes as if signed by such officer or
officers, or sealed with the seal of the corporation, as the case
may be. The fact that a person signing has ceased to be an
officer shall not invalidate any such certificate.
SECTION 2. Transfer Books. The Treasurer or such agent or
agents as may be employed by the treasurer with the approval of
the board of directors shall keep the stock and transfer books of
the corporation and a record of all certificates of stock issued
and of all transfers of stock and a register of all the
stockholders, their addresses and the number of shares held by
each. The board of directors may fix in advance a time, not more
than thirty days preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the
making of any distribution to stockholders or the last day on
which the consent or dissent of stockholders may be effectively
expressed for any purpose, as the record date for determining the
stockholders having the right to notice of and to vote at such
meeting and any adjournment thereof or the right to receive such
dividend or distribution or the right to give such consent or
dissent, and in such case only stockholders of record on such
record date shall have such right, notwithstanding, any transfer
of stock on the books of the corporation after the record date;
or without fixing such record date the board of directors may for
any of such purposes close the transfer books for all or any part
of such thirty-day period.
SECTION 3. Transfer of Shares. Subject to the
restrictions, if any, imposed by the agreement of association,
title to a certificate of stock and to the shares represented
thereby shall be transferred only by delivery of the certificate
properly endorsed, or by delivery of the certificate accompanied
by a written assignment of the same, or a written power of
attorney to sell, assign or transfer the same or the shares
represented thereby, properly executed; but the person registered
on the books of the corporation as the owner of shares shall have
the exclusive right to receive dividends thereon and to vote
thereon as such owner and, except only as may be required by law,
may in all respects be treated by the corporation as the
exclusive owner thereof.
It shall be the duty of each stockholder to notify the
corporation of his post office address.
SECTION 4. Loss of Certificates. In case of the alleged
loss or destruction, or the mutilation of a certificate of stock,
a duplicate certificate may be issued in place thereof, upon such
reasonable terms as the board of directors may prescribe.
ARTICLE III.
STOCKHOLDERS.
SECTION 1. Annual Meeting. The annual meeting of
stockholders generally entitled to vote shall be held on the
third Wednesday of April in each year, if it be not a legal
holiday, and if it be a legal holiday, then on the next
succeeding full business day not a legal holiday. Annual
meetings of stockholders shall be held at the office of the
corporation in the Town of Westborough, Massachusetts, or at such
other place in Massachusetts as the president or a majority of
the directors may designate. Purposes for which annual meetings
are to be held additional to those prescribed by law, by the
agreement of association and by these by-laws may be specified by
the board of directors or by writing signed by the president or
by a majority of the directors or by stockholders who hold at
least one-tenth of the aggregate par value of the capital stock
entitled to vote at the meeting. If any such annual meeting is
omitted on the day herein provided therefor, a special meeting
may be held in place thereof, and any business transacted or
elections held at such meeting shall have the same effect as if
transacted or held at said annual meeting.
SECTION 2. Special Meetings. Special meetings of the
stockholders may be called to be held anywhere in Massachusetts
by the president or by a majority of the directors, and shall be
called by the clerk or, in case of the death, absence, incapacity
or refusal of the clerk, by any other officer of the corporation,
upon written application of stockholders who hold at least
one-tenth of the aggregate par value of the capital stock
entitled to vote at the meeting, stating the time, place and
purpose of the meeting.
SECTION 3. Notice of Meetings. Except as otherwise
provided in Section 4 of Article I, a written or printed notice
of each meeting of stockholders, stating the place, day and hour
thereof and the purpose for which the meeting is called, shall be
given by the clerk, at least seven days before such meeting, to
each stockholder entitled to vote thereat, by leaving such notice
with him or at his residence or usual place of business, or by
mailing it, postage prepaid and addressed to such stockholder at
his address as it appears upon the books of the corporation. In
the absence or disability of the clerk, such notice may be given
by a person designated either by the clerk or by the person or
persons calling the meeting or by the board of directors. No
notice of the time, place or purpose of any regular or special
meeting of the stockholders shall be required if every
stockholder entitled to notice thereof is present in person or is
represented at the meeting by proxy or if every such stockholder,
or his attorney thereunto authorized, by a writing which is filed
with the records of the meeting, waives such notice.
SECTION 4. Quorum. Except as otherwise provided in Section
4 of Article I, at any meeting of the stockholders, a majority in
interest of all stock issued and outstanding and entitled to vote
upon a question to be considered at the meeting shall constitute
a quorum for the consideration of such question, but a lesser
interest may adjourn any meeting from time to time, and the
meeting may be held as adjourned without further action. When a
quorum is present at any meeting, a majority of the stock
represented thereat and entitled to vote shall, except where a
larger vote is required by law, by the agreement of association
or by these by-laws, decide any question brought before such
meeting.
SECTION 5. Proxies and Voting. Subject to the provisions
of Article I hereof and to provisions of law, stockholders who
are entitled to vote shall have one vote for each share of stock
owned by them, except that holders of shares of Preferred Stock -
Cumulative shall have one-quarter vote for each share of such
stock owned by them. Stockholders may vote either in person or
by proxy in writing dated not more than six (6) months before the
meeting named therein, which shall be filed with the clerk of the
meeting before being voted. Such proxies shall entitle the
holders thereof to vote at any adjournment of such meeting but
shall not be valid after the final adjournment of such meeting.
ARTICLE IV.
DIRECTORS.
SECTION 1. Powers. The board of directors shall have, and
may exercise, all the powers of the corporation, except such as
are conferred upon the stockholders by law, by the agreement of
association and by these by-laws.
SECTION 2. Election. A board of not less than three
directors shall be chosen by ballot at the annual meeting of the
stockholders or at the special meeting held in place thereof, or
as provided in Section 4 of Article I. The number of directors
for each corporate year shall be fixed by vote at the meeting at
which they are elected but the stockholders may, at any special
meeting held for the purpose during any such year, increase or
decrease (within the limit above specified) the number of
directors as thus fixed, and elect new directors to complete the
number so fixed, or remove directors to reduce the number of
directors to the number so fixed; provided, however, that while
there are four (4) full quarterly dividends in default on the
Dividend Series Preferred Stock and the Preferred Stock -
Cumulative the number of such directors shall be fixed in
accordance with Section 4 of Article I. No director need be a
stockholder. Subject to law, to the articles of organization, to
the terms of the Dividend Series Preferred Stock and the
Preferred Stock - Cumulative and to the other provisions of these
by-laws, each director shall hold office until the next annual
meeting of the stockholders electing such director and until his
successor is chosen and qualified.
SECTION 3. Regular Meeting. Regular meetings of the board
of directors may be held at such places and at such times as the
board may by vote from time to time determine, and if so
determined, no notice thereof need be given. A regular meeting
of the board of directors may be held without notice immediately
after, and at the same place as the annual meeting of the
stockholders, or the special meeting of the stockholders held in
place of such annual meeting.
SECTION 4. Special Meetings. Special meetings of the board
of directors may be held at any time and at any place when called
by the president, treasurer or two or more directors, reasonable
notice thereof being given to each director, or at any time
without call or formal notice, provided all the directors are
present or waive notice thereof by a writing which is filed with
the records of the meeting. In any case it shall be deemed
sufficient notice to a director to send notice by mail or
telegram at least forty-eight hours before the meeting addressed
to him at his usual or last known business or residence address.
SECTION 5. Quorum. A majority of the board of directors
shall constitute a quorum for the transaction of business, but a
less number may adjourn any meeting from time to time, and the
meeting may be held as adjourned without further notice. Except
as otherwise provided, when a quorum is present at any meeting, a
majority of the members in attendance thereat shall decide any
question brought before such meeting.
SECTION 6. Vacancies. If the office of any director, one
or more, elected by the stockholders generally entitled to vote,
becomes vacant by reason of death, resignation, removal,
disqualification or otherwise, the remaining directors so
elected, though less than a quorum, may, unless such vacancy
shall have been filled by the stockholders generally entitled to
vote, choose by a majority vote of their entire number, a
successor or successors, who shall hold office for the unexpired
term. Any vacancy in the office of a director elected by holders
of the Dividend Series Preferred Stock and the Preferred Stock
Cumulative shall be filled as provided in Section 4 of Article I.
ARTICLE V.
OFFICERS.
SECTION 1. Election and Appointment. The officers shall be
a president, a clerk, a treasurer and such other officers and
agents as the board of directors may in their discretion appoint.
The treasurer and the clerk shall be chosen by ballot at the
annual meeting of the stockholders generally entitled to vote.
The president shall be elected annually by the board of directors
after its election by the stockholders. The president shall be a
director. The clerk shall be a resident of Massachusetts. So
far as is permitted by law, any two or more offices may be filled
by the same person. Subject to law, to the agreement of
association and to the other provisions of these by-laws, the
treasurer and clerk shall each hold office until the next annual
meeting of stockholders generally entitled to vote and until his
successor is chosen and qualified, the president shall hold
office until the first meeting of directors after the next annual
meeting of stockholders generally entitled to vote and until his
successor is chosen and qualified and the other officers and
agents shall hold office during the pleasure of the board of
directors or for such term as the board of directors shall
prescribe. Each officer shall, subject to these by-laws, have in
addition to the duties and powers herein set forth such duties
and powers as are commonly incident to his office, and such
duties and powers as the board of directors shall from time to
time designate.
SECTION 2. President. Except as otherwise determined by
the board of directors, the president shall be the chief
executive officer of the corporation and shall preside at all
meetings of the stockholders and of the board of directors at
which he is present. The president shall have custody of the
treasurer's bond.
SECTION 3. Clerk. The clerk shall keep an accurate record
of the proceedings of all meetings of the stockholders in books
provided for the purpose, which books shall be kept at the
principal office of the corporation and shall be open at all
reasonable times to the inspection of any stockholder. In the
absence of the clerk at any such meeting a temporary clerk shall
be chosen, who shall record the proceedings of such meeting in
the aforesaid books. The clerk and such temporary clerk shall be
sworn.
If no secretary is appointed, the clerk shall also keep
accurate minutes of all meetings of the board of directors and in
his absence from any such meeting a temporary clerk shall be
chosen, who shall be sworn and shall record the proceedings of
such meeting.
SECTION 4. Secretary. If a secretary is appointed, he
shall keep accurate minutes of all meetings of the board of
directors, and in his absence from any such meeting a temporary
secretary shall record the proceedings thereof.
SECTION 5. Treasurer. The treasurer shall, subject to the
direction and under the supervision of the board of directors,
have general charge of the financial concerns of the corporation
and the care and custody of the funds and valuable papers of the
corporation, except his own bond, and he shall have power to
endorse for deposit or collection all notes, checks, drafts,
etc., payable to the corporation or its order, and to accept
drafts on behalf of the corporation. He shall keep, or cause to
be kept, accurate books of account, which shall be the property
of the corporation. If required by the board of directors he
shall give bond for the faithful performance of his duty in such
form, in such sum, and with such sureties as the board of
directors shall require.
Any assistant treasurer shall have such power as the board
of directors shall from time to time designate.
SECTION 6. Removals. The stockholders generally entitled
to vote may, at any special meeting called for the purpose, by
vote of a majority of the capital stock issued and outstanding
and generally entitled to vote, remove from office the treasurer,
clerk or any director elected by the stockholders generally
entitled to vote, and elect his successor. The board of
directors may likewise, by vote of a majority of their entire
number, remove from office any officer or agent of the
corporation; provided, however, that the board of directors may
remove the treasurer or clerk for cause only.
SECTION 7. Vacancies. If the office of any officer or
agent, one or more, becomes vacant by reason of death,
resignation, removal, disqualification or otherwise, the
directors may unless such vacancy, if in the office of the
treasurer or clerk, shall have been filled by the stockholders
generally entitled to vote, choose by a majority vote of their
entire number, a successor or successors, who shall hold office
for the unexpired term, subject to the provisions of Section 6 of
this Article V.
ARTICLE V-A.
LIABILITY AND INDEMNIFICATION.
No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director notwithstanding any
provision of law imposing such liability, except with respect to
any matter as to which such liability shall have been imposed (i)
for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under section sixty-one or
sixty-two of chapter one hundred and fifty-six B of the General
Laws of Massachusetts, or (iv) for any transaction from which the
director derived an improper personal benefit.
The corporation shall indemnify each of its directors and
officers against any loss, liability or expense, including
amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees, imposed upon or reasonably
incurred by him in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal,
including but not limited to derivative suits (to the extent
permitted by law), in which he may be involved or with which he
may be threatened, while in office or thereafter, by reason of
his being or having been a director or officer, except with
respect to any matter as to which he shall have been adjudicated
in such action, suit or proceeding not to have acted in good
faith in the reasonable belief that his action was in the best
interests of the corporation, or, to the extent that such matter
relates to service with respect to any employee benefit plan, as
in the best interests of the participants or beneficiaries of
such plan. As to any matter disposed of by a compromise payment
by a director or officer, pursuant to a consent decree or
otherwise, no indemnification either for said payment or for any
other expenses shall be provided unless such compromise shall be
approved as in the best interests of the corporation, after
notice that it involves such indemnification, if no change in
control has occurred (a) by a disinterested majority of the
directors then in office, (b) by a majority of the disinterested
directors then in office, provided that there has been obtained
an opinion in writing of independent legal counsel to the effect
that such director or officer appears to have acted in good faith
in the reasonable belief that his action was in the best
interests of the corporation, or (c) by the vote, at a meeting
duly called and held, of the holders of a majority of the shares
outstanding and entitled to vote thereon, exclusive of any shares
owned by any interested director or officer or, if a change in
control shall have occurred, by an opinion in writing of
independent legal counsel to the effect that such director or
officer appears to have acted in good faith in the reasonable
belief that his action was in the best interests of the
corporation.
Expenses incurred with respect to the defense or disposition
of any action, suit or proceeding heretofore referred to in this
Article shall be advanced by the corporation prior to the final
disposition of such action, suit or proceeding, upon receipt of
an undertaking by or on behalf of the recipient to repay such
amount if it is ultimately determined that he is not entitled to
indemnification, which undertaking shall be accepted without
reference to the financial ability of the recipient to make such
repayment. If in an action, suit or proceeding brought by or in
right of the corporation, a director is held not liable, whether
because relieved of liability under the first paragraph of this
Article or otherwise, he shall be deemed to have been entitled to
indemnification for expenses incurred in defense of said action,
suit or proceeding.
(i) The term "officer" includes (a) persons who serve at
the request of the corporation as directors, officers, or
trustees of another organization and (b) employees of the
corporation and its affiliates who serve in any capacity
with respect to benefit plans for the corporation's
employees.
(ii) An "interested" director or officer is one against whom
in such capacity the proceeding in question or another
proceeding on the same or similar ground is then pending.
(iii) A "change in control" occurs when: (a) any
individual, corporation, association, partnership, joint
venture, trust or other entity or association thereof acting
in concert (excluding any employee benefit plan, dividend
reinvestment plan or similar plan of the corporation, or any
trustee thereof acting in such capacity) acquires more than
20% of the outstanding stock having general voting rights or
more than 20% of the common shares of any entity owning more
than 50% of the corporation's outstanding stock having
general voting rights, whether in whole or in part, by means
of an offer made publicly to the holders of all or
substantially all of such outstanding stock or shares to
acquire stock or shares for cash, other property, or a
combination thereof or by any other means, unless the
transaction is consented to by vote of a majority of the
continuing directors; or (b) continuing directors cease to
constitute a majority of the board.
(iv) The term "continuing director" shall mean any director
of the corporation who (a) was a member of the board of
directors of the corporation on the later of January 1,
1987, or the date the director or officer seeking
indemnification first became such, or (b) was recommended
for his initial term of office by a majority of continuing
directors in office at the time of such recommendation.
Nothing contained in this Article shall (i) limit the power
of the corporation to employees and agents of the corporation or
its subsidiaries other than directors and officers on any terms
it deems appropriate not prohibited by law, (ii) limit the
power of the corporation to indemnify directors and officers for
expenses incurred in suits, actions, or other proceedings
initiated by such director or officer or (iii) affect any rights
to indemnification to which corporation personnel other than
directors and officers may be entitled by contract or otherwise.
The rights provided in this Article shall not be exclusive of or
affect any other right to which any director or officer may be
entitled and such rights shall inure to the benefit of its or his
successors, heirs, executors, administrators and other legal
representatives. Such other rights shall include all powers,
immunities and rights of reimbursement allowable under the laws
of The Commonwealth of Massachusetts.
The provisions of this Article shall not apply with respect
to any act or omission to any act or omission occurring prior to
June 25, 1987. No amendment to or repeal of this Article shall
apply to or have any effect upon the liability, exoneration or
indemnification of any director or officer for or with respect to
any acts or omissions of the director or officer occurring prior
to such amendment or repeal.
ARTICLE VI.
SEAL.
The seal of the corporation shall, subject to alteration by
the board of directors, consist of a flatfaced circular die with
the words "New England Power Company Massachusetts" on the
periphery, and the words "Corporate Seal Consolidated 1916"
within the circle, cut or engraved thereon.
ARTICLE VII.
EXECUTION OF PAPERS.
Except as the board of directors may generally or in
particular cases authorize the execution thereof in some other
manner, all deeds, leases, transfers, contracts, bonds, notes,
checks, drafts and other obligations made, accepted or endorsed
by the corporation, shall be signed by the president, any vice
president, the treasurer or any assistant treasurer.
ARTICLE VIII.
FISCAL YEAR.
Except as from time to time otherwise provided by the board
of directors, the fiscal year of the corporation shall be the
calendar year.
ARTICLE IX.
AMENDMENTS.
Subject to the provisions of law and of the Dividend Series
Preferred Stock and the Preferred Stock - Cumulative, these
by-laws may be amended, altered or repealed by a vote of a
majority of the outstanding capital stock generally entitled to
vote at any meeting of such stockholders, provided notice of the
proposed amendment, alteration or repeal is given in the notice
of said meeting.